Defamation Law - Assignment Example

Defamation Law Name Institution (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) The key legal issue of concern is whether Larry’s statement is a defamatory statement, or whether he has defamed Ella. Defamation, as Oludolapo1 attempts to show, is the act of communicating or spreading false statement in order to damage the reputation of an entity. Under common law, for a statement to be considered as defamation, the claims should be sufficiently false, as well as be made to a separate individual other than the one who has been allegedly defamed2. Again, the plaintiff will need to prove the existence of three essential elements, as had been demonstrated in the case law of Brown v. Swett & Crawford of Tex3. The three include proof of a defamatory statement, ‘of or concerning’ the claimant, and publication. In the case law, it was held that defamatory statement is a statement that damages the reputation of a plaintiff, as well as position the plaintiff into a compromising position that exposes him to contempt and hatred. Regarding “Of or Concerning Plaintiff,” the courts held that the claimant must show that any reasonable person who reads or listens to the information is likely to see that statement as having been pointed to the claimant. When it comes to the element of publication, the courts held that the alleged defamatory statement has to have been communicated to a third party or ordinary members of public, who should also have the capacity to understand its meaning, as well as its application to the claimant. Therefore, Ella will need to bring proof that the alleged defamatory statement was published to a third party, who can understand the meaning of the statement. She is likely to have a case since Larry published the defamatory statement in his Trail-Blazer article, making it accessible to nearly 10,000 Australian subscribers. Furthermore, the statement lowers her estimation in the eyes of her college mates who can access the article through the library. She also needs to prove that she can identify the defamatory statement. Again, she is likely to have a case since Larry attempted to identify her. This is rather easy to notice, as Larry mentioned Ella’s father, as well as the course she took at the university in addition to her sterling academic performance, which indicate to any ordinary member of the public who know her and her father that he was referring to Ella. She also needs to prove that the alleged defamatory statement is sufficiently false and that it damaged his reputation. Ella is not likely to have a case since the statement is substantially true. Hence, since the element of ‘defamatory statement’ cannot be proved, Larry did not defame Ella. At any rate, Larry would still have two key defences: truth and fair comment. Regarding the “truth,” Larry needs to prove to the court that the statement he publish is sufficiently accurate or truthful, although ‘substantial truth’ is also acceptable as demonstrated in the case Lemons v. Chronicle Publishing Company 4, where the courts decided that although the alleged defamatory statement was improper and false, it was substantially true and hence, dismissed the claims made by the plaintiff. For this reason, Larry’s statement has some substantial truths. In respect to fair comment, Larry will need to prove that the alleged defamatory statement is an issue of public concern. Therefore, he needs to prove that he expressed an honest opinion to raise an issue of public concern, and, therefore, his statement was a mere criticism and remark. These facts were demonstrated in the case Milkovich v. Lorain Journal5. It appears that Larry’s statement aimed to raise public concern over the manner in which the young generation behave. This provides him with a basis for defence. For instance, he commented: "It amazes me the sense of entitlement young white Australians have these days." 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) Scandalising the courts, as Lee6 attempts to argue, is typical in cases where writers attempt to criticise judges. Tehmtan7 defines the act of scandalising the court as “a publication that scandalises or tends to disgrace the court’s authority". In the case law of R. v. Gray,8 it was held that a slanderous abuse of a judge amounted to scandalising the courts. Larry’s article appears to criticise Judge John Egotistical of the ACT Supreme Court as being corrupt, and it is suggestive of the judiciary as being corrupt. The statement potentially lowers the authority of the court in the eyes of the public. If these facts are taken into perspective, then it is easy to argue that Larry is guilty of scandalising the courts. Within this context, Larry has two key defences again, namely truth and fair comment. Regarding fair comment, Larry needs to argue that the statement he made was intended to criticise the specific judge in good faith and that he had to bring the concerns up as a matter of public interest. Regarding the truth defence, Larry needs to argue that his criticism is based on fundamental facts, such as that held in the case Kemsley v Foot9, and that the facts cannot be ignored and that he did not have any ill motives for raising up the issue. He will need to provide evidence that his criticism was motivated by his right to criticise the judge in good faith. (2) 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) My stand, or advice, is that the Department of Tourist Attracting has no obligation to furnish Ella with the record of conversation between Larry and the Department on issue concerning his health or succession plan, under the Freedom of Information Act 1982 (Cth). Despite the fact that the Act provides members of the public, including Ella, with the right of access to official government documents, Larry is protected by the fact that the Act does contain a room for exemptions. Indeed, Section 47F(1) of the Act specifies that a government department or agency has no obligation to disclose the content of the conversation, or issue the documents, when it sufficiently believes that the disclosure is likely to lead to “unreasonable disclosure” of an individual’s personal information. A motivation for this exemption is protection of privacy rights. Ultimately, given that it is clear that Ella is driven by revenge and is motivated to make irrational disclosure that Larry has an illness, as recently hinted to in her Twitter, the Department has no obligated to disclose the record of conversation between Larry and his contact at the Department regarding his succession plan. Part 2 - Essay Question (3) 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 when the courts weigh the public interest to be informed with Ella’s interests to maintain privacy, and vice versa. The interests that weigh heavier should be given consideration. Alternatively, the Larry’s freedom of expression and Ella’s privacy rights should not be seen to automatically be opposites. They should be perceived to be complementing each other. Therefore, to achieve a balance between privacy rights and freedom of speech fair assessment of the privacy rights concerns that restrict the right to freedom of expression and public interest to get informed should be performed. At any rate, it should be warned that the public interest should not be perceived to be what the public is specifically interested in, in order to enrich their desire for scandalous information. Still, the public’s genuine interest should be taken into perspective to avoid succumbing to privacy rights merely intended to effectively protect private life10. Ultimately, the pivotal theory emerges when determining a proper balance between privacy rights and freedom of expression. In attempting to strike the balance, the pivotal theory attempts to take the consideration of the role of people or instruments of the public eye and privacy protection and the freedom of expression. According to the theory, individuals who serve as the public eye need to have minimal privacy rights after they become known to the public to allow the media to intrude on their private lives based on the argument that it is ‘the public’s right to know.”11 It is argued that there is no balance between the law of privacy and freedom of expression in Australia. Generally, the Australian law has been perceived to prefer protecting privacy rights at the expense of freedom of expression. While the jurisdictions in Australia, such as the common law of Victoria, South Australia, and Western Australia have attempted to balance freedom of expression and privacy rights by providing a cause of action and a range of defences to claimants and defendant respectively, they lack a universally acceptable balance that protects the privacy rights without excessively overburdening the freedom of expression12. This is illustrated by the tendency of the courts to presume falsity, such as in the case law of New South Wales Court of Appeal in Singleton v Ffrench13, where the court had erred by stating that when the defendant does not prove the truth of the libel, the law should assume it is false. For this reason, an equal balance is necessary in Australia to ensure that individual’s privacy remains unharmed while the same time freedom of expression is upheld. Such an attempt is clearly stated by Lord Donaldson in the case law of Attorney General v Guardian Newspapers Ltd14, the basis of domestic law should be that each citizen is granted “a right to do what he likes, unless restrained by the common law or by statute.” Such a perspective provides a basis for achieving freedom of expression, although under the constraints of the law. Hence, to achieve a proper balance between freedom of expression and privacy rights, it is difficult to argue that freedom of expression aims to grant each citizen the unlimited right to speech without some degree of accountability. Hence, the courts need to achieve a balance between the right of the public to know and an individual’s interests to maintain privacy. The right of the public to know should be weighed against an individual’s interests to maintain privacy to establish the weightier one. However, this approach has some downsides. For instance, while the test is vague, the outcomes are also erratic. An alternative approach is to consider the privacy rights and freedom of expression as being on one line. In this second approach, the freedom of expression and privacy rights should not be seen to automatically be opposite or contradictory. Rather, they should be seen as also complementing each other. A proper balance has been achieved in a model defamation case of Chauvy v. France15, where a book was published alleging that Mr. and Mrs. Aubrac, former members of the French Resistance, had “betrayed the Resistance leader Jean Moulin leading to his arrest and death. Mr. and Mrs. Aubrac started legal proceedings against the book’s publisher and author. The courts found the book’s publisher and author guilty of defamation and order them to pay Mr. and Mrs. Aubrac damages. However, the publishers appealed complaining of violation of their freedom of expression. The court later balanced the interests of the public to be informed and the desire to protect Mr. and Mrs. Aubrac’s reputation. The courts considered the vital role of the press and the privacy concerns, and ruled that the findings of the author had made certain false insinuations that could not rely on the defence of good faith, as it also violated the element of the public’s interest to be informed. To conclude, Larry’s right to privacy can be balanced with Ella’s right to freedom of expression when the courts weigh the public interest to be informed with Ella’s interests to maintain privacy, and vice versa. Part 3 - Multiple choice questions (4) Which of the following entities referred to in the facts is not bound by the Privacy Act 1988 (Cth)? (select one) (1 mark) a. The Commonwealth Department of Tourist Attracting. b. The Minister for Tourist Attracting. c. Trail-Blazer. d. Larry’s oncologist (ie his doctor). (5) Which of the following statements is correct when considering whether Larry’s statement regarding ‘young white Australians’ is unlawful under section 18C(1) of the Racial Discrimination Act 1975 (Cth)? (select one) (1 mark) a. The act was a public act because it was made on an online forum. b. The act was not a public act because it was limited to those who had a subscription. c. Section 18C(1) imposes a subjective test, so it is necessary to prove that at least one person was offended, insulted, humiliated or intimidated. d. It does not matter who the comment is made about for the purposes of section 18C(1) because dominant majorities are as easily vilified as traditionally oppressed monitories. (6) Applying the common law test of confidentiality in relation to Bettie’s comments to Ella regarding Larry’s health, which of the following statements is not correct? (select one) (1 mark) a. It is likely that Larry’s health information would have the necessary quality of confidence about it. b. It is immaterial in determining breach of confidentiality whether Bettie intended to cause Larry detriment. c. Larry must prove that someone actually disclosed his confidential information in order to bring an action in court. d. Disclosure of confidential information would be permitted if Bettie could establish that disclosure was in the public interest. (7) If Ella were a journalist, which of the following statements is correct in relation to the disclosure of sources? (select one) (1 mark) a. If a court ordered Ella to disclose her source for Larry’s health information, she would not be compelled to reveal Bettie’s name if it was contrary to her industry code of ethics. b. Under the common law, there is no specific protection for the protection of journalists’ sources. c. There are legislative protections which protect journalists’ sources absolutely, regardless of whether the court orders the source to be disclosed. d. The ‘Newspaper Rule’ has the effect of protecting sources throughout the entire course of legal proceedings. Bibliography Articles, Books and Journals Angelotti Ellyn, 'Twibel Law: What Defamation And Its Remedies Look Like In The Age Of Twitter,' (2013) 8.2 Journal Of High Technology Law 431-506 Jack Lee, "Freedom of Speech and Contempt by Scandalizing the Court in Singapore," (2009). International Association of Law Schools (IALS) Conference on Constitutional Law, Washington DC, 11-12 September 2009. Michael McHugh, 'Dancing In The Streets – The Defamation Tango,' (2005) Australian Bar Association Conference, 2-8 Oludolapo Ogunsola, 'Privacy V Freedom Of Speech: A Comparative Study On The Law Of Privacyand Freedom Of Expression In Relation To The Press, In The Uk And The USA,' (2014) 1.1 Plymouth Law and Criminal Justice Review 173-191 Smet, Stijn. "Freedom of Expression and the Right to Reputation: Human Rights in Conflict," (2010) 26.1 American University International Law Review 183-236 Tehmtan Andhyarujina, 'Scandalising the Court - Is It Obsolete?' The Practical Lawyer (online) 5 Oct 2015, Case Laws Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 382 Chauvy & Ors v France (2005) 41 EHRR 29 Kemsley v Foot [1952] A.C Milkovich v. Lorain Journal Co., 497 U.S.1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); New South Wales Court of Appeal in Singleton v Ffrench 5 NSWLR 425 at 442 R. v. Gray (1900) 2 QB 36, 40 : (1900) 82 LT Roberts v Camden (1807) 9 East 93 at 95; 103 ER 508 at 509 Read More