Law of Communication - Essay Example

Law of Communication Name: Course: Law of Communication Part 1- Problem questions 1. From the fact sheet, it is possible to argue that Larry defamed Ella through the online article that he wrote concerning the claims by the latter on her travels abroad. In the Australian context, the law of defamation often seeks to protect the reputation of an individual by identifying ways of reconciling element of freedom of speech and the need to ensure individual reputation is safe from the public domain.1 Despite the perceived defamation, there are defence areas that Larry can use when subjected to the requirements of the law. One of the defence points would be claims that he was writing based on imagination and observation on the current trends of Law of communication students in the institutions of higher learning. In addition, Larry can also argue that he was not referring to a specific individual but was deriving his story from years of experience in interviewing fresh university graduates. In terms of the jurisdictional issues that may arise in relation to Trail-Blazer, is an online travel magazine that specifically targets the wealth Englishmen. This means that the magazine aims at communicating matters related to travelling and informing their target readers of the desirable destinations. Despite being hosted in London, the magazine operates an office in Sydney at it is also funded by the Commonwealth Department of Tourism. This is because it derives finances for its operations from the Australian government it can be charged under the Australian law on defamation.2 In addition, other jurisdictional issue that may arise is the failure by Larry to operate according to the mandate of the company. The role of the magazine is to communicate about tourist destinations and not to communicate about the communication law students in the Universities. This makes it possible for Ella to commence a defamation action against Trail-Blazer irrespective of the location of the company’s server.3 2. It is possible to argue that Larry has committed a scandalizing contempt by publishing his article. The scandal arises from his decision to publish details of an interview that he held with Ella without the consent of the interviewee. Furthermore, he mentions Ella’s father, Hon John Egotistical, a Supreme Court judge with who he has not had any previous communication. The defence that might be available to Larry is that he was communicating based on his role as a journalist to expose issues of corruption in the society. However, despite this defence, the consequences of decision to publish the article might be based the decision to publish unverified information hence acting in contravention of the ethical standards of journalism. In addition, he can be charge of contempt of court by disrespecting an ACT Supreme Court judge. The penalties for such contempt include fines of serving a jail term for a fixed period. It is possible for Larry to be jailed for as long as the judge wishes or until he apologises to the courts and agrees to refrain from future defamation of the courts. Such contempt will be based on the realization by the judge that Larry was acting out of absolute ignorance of the requirements of the law. 3. Freedom of Information Act 1982 gives members of the public the authority to have access to the official documents of the commonwealth and the allied agencies that operate under its laws. This is often made available to the public in event that the information that is to be published will help in understanding a particular phenomenon in the society.4 In addition, it is possible to the request to accessing these documents is aimed at helping the country in solving corruption issues or matters of state security. In the case of Ella, her objective is to seek revenge against Larry and the Trail-Blazer for denying her an employment opportunity and publishing an article that she considers defaming to her reputation. It is therefore not advisable to allow her to access the documents since she operates based on malicious intentions, in addition, her accusations on the questionable relationship between Trail-Blazer and the Commonwealth Department of Tourist Attraction are based on unverified claims. Ella does not desire to reveal substantial information about Trailblazer and its operations considering that she is also selective in the type of information she desires from the government. Her objective is to use the selected and embarrassing information to write an article that will destroy the reputation of the company and the commonwealth government. It would be disrespectful to the company and to the commonwealth government if she were allowed to selectively acquire information that she considers embarrassing to the former and the latter. Part 2: essay question 4. According to the Australian human rights commission, every Australian citizen has the right to freedom of expression and the right to have an opinion on any activity within the country. This right is inclusive of the freedom to hold personal opinion without any form of interference and at the same time, an Australian citizen has the right to seek, receive and impart information and ideas through any media channel irrespective of the frontier.5 However, despite the provision of this right, it is also important for the individual exercising the right they are subject to specific restrictions. These restrictions are only those provided for by the law since they are considered a necessity in practicing rights.6 When this right is perceived in relation to the desire by Ella to protect her privacy and the desire by Larry to communicate freely. It would be important for both parties to exercise their rights by respecting the reputation and the rights of each other. One way by which such a balance can be realized is by ensuring that both Ella and Larry understand the information they would want to publish and the possible repercussions not only on the publisher but also on the reader. Larry has invaded the privacy of Ella by publishing information concerning her limited experience in matters of first class travels and five star hotels. In addition, Larry while exercising his freedom of speech has also violated the right of Ella to privacy by publishing unverified information concerning her father and his position as a judge in the ACT Supreme Court. The desire by Ella to exercise her constitutional right under as stipulated in the Freedom of Information Act 1982 can be perceived as an attempt to violate the privacy of Larry. This is because Ella desires to acquire access to embarrassing information to validate her allegations that Department of Tourist Attracting and Trail-Blazer are engaging in questionable affairs. Tweeting information on the perceived doctor’s appointment by Larry due to cancer diagnosis is considered gross violation of his privacy and this explains the need for the two parties to strike a balance on their freedom of speech and the need to protect each other privacy. One way by which these parties can develop amicable solution to this problem is by retracting all the statements published on tweeted on online platforms and apologizing to each of the parties for the wrongs that were committed. This is however only practical in a situation where the two parties agree to an out of court settlement where they can drop all the charges and only agree to publish information that is verifiable. Addressing the crisis from this approach will be a perfect way to ensure a balance is realised not only preserving their right to expression, the acquisitions and dissemination of information but also in their ability to respect each other reputation by refraining from information that internes with the privacy of another party. The Australian constitution does not provide an express protection to freedom of expression or Speech. Despite the perceived lack of the protection to this right, the Australian High Court in 1992 held the argument that the right to freedom of speech or expression as far as the political and public discussion were concerned was implicit in the constitution.7 According to the High Court in Australia, the implied nature of this right was because it was thought to be a major requirement in the democratic state of the Australian Commonwealth. There have however been cases challenging the scope of this right as implied in the constitution. In the Australian constitution, freedom of speech does not extend as a right where political issues not involved.8 Australian constitution does not operate on the Bill of Rights however, the freedom of speech is only perceived to be implied in the constitution when it involved political and public matters.9 There is less clarity, which necessitated the enactment of different hate speech laws. These laws prohibited any form of offensive behaviour that is likely to offend, humiliate, intimidate or insult another person or a group of people. An offensive act, according to the Australian Constitution is considered public if it is expressed or displayed to people who are in a public space.10 These include the places that members of public can access as required by law or the places that they can access by invitation such as the online platform. Freedom of speech is however protected in situations where the publications made based on fair and accurate reports on matters of public interests. When the situation of Larry and Ella is viewed in this respect can be perceived to be in violation of the law since the parties involved were publishing defaming information based on unverifiable sources. Trail-Blazer is a reputable company that operates on the international platform. The company can be held vicariously liable for the unlawful acts of Larry since as the editor to the company, his publications were done with respect to the duties and the responsibilities provided for in his job description. However, Larry can be charged in isolation if Trail-Blazer can prove beyond any reasonable doubt that it had taken steps to prevent Larry from publishing the defaming article. In the Australian Constitution, there is no clarity on the protection of the freedom of speech because the country does not operate on the Bill of rights making the freedom of speech an implied aspect in the constitution especially while dealing with matters of political or public concerns.11 This makes it important for Australia to develop a human rights framework, which will allow for the development of a constitutional protection mechanism to ensure that the freedom of speech is exercised with caution to that which is considered an element of privacy.12 This is because the absence of a clear process of balancing the competing interest of freedom of speech and privacy, there is a possibility of gross violation of the constitution based on implied freedom of speech. Freedom of speech in the Australian context encompasses the right of an individual to not only express his views but also talk about his experiences disregarding general public interest on condition that it does not violate trust or confidence.13 The process of communicating freely may be a violation of the constitution especially if it is based on unverifiable evidence or in a situation where the information communicated interferes with the ability of the public to trust the communicator. In the case of Larry, inasmuch as he was reacting to misplaced thoughts by Ella, he generalizes that all Law of Communication students do not have sufficient experience to work for reputable organizations such as the Trail-Blazers. Larry breaks the trust of current and potential employees with regard to the confidentiality of the information they provide to the company during the interview process. Furthermore, the decision by Ella to tweet about Larry’s cancer in a derogatory manner is in violation of his right to privacy. A detailed framework on the protection of right to privacy and freedom to speech would serve the purpose of demarcating the extent to which in individual can exercise his freedom of speech. Part 3: Multiple-choice questions 5. The Commonwealth Department of Tourist Attracting 6. Section 18C(1) imposes a subjective test, so it is necessary to prove that at least one person was offended, insulted, humiliated or intimidated 7. It is immaterial in determining breach of confidentiality whether Bettie intended to cause Larry detriment. 8. Under the common law, there is no specific protection for the protection of journalists’ sources. Bibliography Armstrong, Blakeney & Watterson, Media Law in Australia (2nd ed. 1988). Barendt, Free Speech in Australia: A Comparative Perspective, (1994) Sydney Law Review 149. Brennan, The defence of Truth and Defamation Law Reform, 20 Monash University Law Review 151 (1994). Coper, The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?, (1994) Sydney Law Review 185. Douglas, Freedom of Expression in the Australian Constitution, (1993) 16 University of New South Wales Law Journal 315. Flahvin, Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles? 18 UNSWLJ 327 (1995). Walker, The Impact of the High Court’s Free Speech Cases on Defamation Law, 17 Sydney Law Review 43 (1995 Zines, A Judicially Created Bill of Rights?, (1994) 16 Sydney Law Review 166. Read More