Law of Communication Issues - Assignment Example

Law and Communication Name Institution Question (1) Have Ella and Matthew defamed Senator Sam A defamatory statement refers to a false statement in a written, recorded or spoken about the fact that can cause damage or injury to someone's reputation (Australian Law Reform Commission, 1979). Publishing information online, whether in a blog, podcast or video may harm the reputation of another person, group or an organization. In this case, the information published concerning are Senator Sam are defamatory because the information portrays him as untrustworthy. If one publishes of information that harms another person reputation, he or she is liable for defamation. Ella and Mathew published private information, 'the good Senator has cheated on his wife many times,' and therefore commit invasion of privacy, and this publication can harm his reputation. In this case, the senator has a reputation and therefore it can be ruined after Ella publication of false statements of fact. However, these claims may not be true. Ella and Mathew indicated that when they requested a copy of Senator Straight's diary, they didn't find anything on which they can base their allegations of the Senator's affair, and decided if they were asked about the truth of the information published they would use his recorded absence. This is a defamatory statement because of the impression it is likely to make on those reading it. The public may perceive him to be dishonest and unfit to hold a public office. Ella and Mathew cannot prove that the allegations made true, and the Senator may sue them for untrue factual implications claiming that the information caused him emotional distress. It is not legal to publish defamatory rumors because the law takes the views that readers will assume where there is smoke there is fire, and if one cannot prove the rumor to be true, the authors will be taking the risk of liability defamation. The fact that the allegation of the senator cheating was not the result of a libel claim when it was initially published does not mean its safe to use the information. Despite the numerous allegations of Senator cheating on his wife, it is not safe to use that information. If one repeats the allegation made, it is equivalent of repeating someone else's word, and if the allegation is defamatory, you will be liable. The new publication is a fresh libel and can be the subject of a claim However, there are few arguments that if raised and proven by the defendant can defeat the defamation claim. The defendant can claim that he was expressing an opinion. The allegations were if the senator cheats on his wife, will he cheat on the people. The freedom of expression provides that people have a right to make comment, state their opinions regarding public concern issues. In other words, once has the right to voice his or her opinion despite the opinion having the probability of hurting another person feelings or lowering their reputation, pure opinions and thus it cannot be used as a determinant of a defamation claim. Moreover, another defense for Ella and Mathew is that they have already provided the readers with information from which they derived the opinion. The allegation that Senator would cheat on the people is based on the opinion that he cheats on his wife, and thus can be protected even if the view is proved untrue incorrect. Thus it can be protected as a statement of opinion. (2) Have Ella and Matthew breached Tom's confidentiality? The duty of confidence provides that an individual has an obligation of conscience depending on how information was obtained (Michael, 2010). This scenario shows misuse of private information, which is concerned with the protection of human autonomy and dignity. Ella and Mathew had an obligation to control the way Tom's information was broadcasted as well as his right to private life, self-esteem, and respect. The misuse of private information tends to be disclosure, in this case, publication of private information. The law on privacy is not solely concerned with secret information but also concerned with the intrusion. In this case, Tom information was obviously private as it relates to his sexual relationship. Ella and Mathew breached Toms confidentiality since the nature of activity Tom was engaging in would be considered private, and thus when such information appear in public would affect him. Also, the absence of consent shows a breach of confidence. Tom information is confidential information and hence may receive protection since Tom is not a public figure as opposed to Senator Sam who may be denied injunctive relief against the media disclosing about their sexual affairs. Once Ella and Mathew published Tom's private information, it lost its confidentiality as now the public have become aware of it. Ella and Mathew had an obligation of confidence because they had an understanding that the information Tom gave them was suppose to be kept secret, and this should suffice to impose upon them the equitable obligation of confidence. There are no defenses in this case; there was a breach of confidence to publish Tom's sexual affairs. The information relating a sexual aspect of the relationship was not in the public domain and was capable of protection, and it is of no public concern. Public interest refers to the interests of the public and approximating to public benefit. In this case, there is no conflict of right to freedom of expression and privacy as Toms affair does not relate to matters of significant public interest. (3) Is Canberra-Leaks bound by the Privacy Act 1988 (Cth)? Why / why not? Canberra leaks are not bound by privacy principles under the Privacy Act 1988 (Cth). The act exempt Canberra leaks because it does not collect personal information. The Act defines personal information as the subject information that can be associated with him or her (Doyle & Bagaric, 2005). Canberra leaks are open to the public, and no subscription is required to access the site, and thus does not have the personal information of the public. (4) Does Ella have a right to access Senator Sam's diary Ella has a right to access Senators Sam Diary in this case. According to the Freedom of Information Act 1982 (Cth), the public have a legal right to access the document from all government agencies. Openness enables the members of the public to participate in democratic government. Senator Sam is a member of the government agencies. FOI legislation gives Ella a legal right to request access to specific documents. Documents can include emails, files, diaries, notebooks, reports among others. (5) Is everything that Ella and Matthew have written protected by a broad constitutional right to freedom of speech? Why / why not? (2 marks) Not everything Ella and Mathew wrote is protected under the freedom of speech. Freedom of speech claims that people have the right to right to look for, obtain and communicate any information in writing, orally or any other way one chooses. However, the right of freedom of speech comes with duties and responsibilities to respect the rights and reputation of another person. The laws of defamation restrict what they right as it can ruin Senator Sam's reputation once they have exercised their freedom of speech. This restricts Ella and Mathew commentary on others. There is only ad hoc protection of privacy under Australian law. This is a significant flaw of the Australian legal system. Most Australians believes that the law offer protection to privacy, however, people disclose their secret information, images online or to friends. The people do not have adequate information regarding privacy protection, and it is now evident the Australian are experience the negative consequence of the erosion of their privacy rights, especially in advancement of technology. The privacy law framework appears to have separate components. The introduction of leaking information by media organization has raised concerns whether the currently ad hoc approach is sufficient in protection of privacy under Australian law (Mason, 2006). Law recognized private information to be that is entirely secret. Gleeson CJ in Lenah case proposed privately to refer to certain kind of information relating to health, personal relationships, finance or certain activities that a reasonable person would easily recognize that they are not meant to be observed. The current approach removes definitional restriction when dealing with cases of protection of privacy and this offers an effective legal resolution. However, this approach reduces the privacy boundaries and fails to acknowledge other concepts such as gender, abortion, sexual orientation among others. Australia does not recognize privacy as a right. The article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one should be denied his or her rights to privacy, family or reputation. The Privacy Act 1988 (Cth) was implemented as the ICCPR obligation. However, there is no Bill of Rights in Australia and this Act only recognize information privacy (Wacks, 1993). Under Australian law due to lack of a bill of rights, the protection of rights to privacy and freedoms is relatively ad hoc reasoning of the court. Therefore, it seems noticeable that legal issue in a case that raises privacy issue should concern the availability of a temporary injunction where there is no recognized cause of action. Despite how legal issue is framed, the judges are supplied with both explicit and implicit assumptions regarding the benefits of institutions and social values. Taking these into account, the relative ad hoc and chaotic reasoning of the courts concerning privacy in the case of ABC vs. Lenah (2001) is an example of what happen when our legal systems fail to take the protection of privacy seriously. As a result, the legal framework is inadequate for recognizing and protecting individual rights (Lindsay, 2005). Although, recognition of Australian tort of privacy which is considered a more appropriate form of protection as compared to protection of privacy under the action of breach of confidence improving the general law more, however, it is still inadequate without the bill of rights. In other words, it seems that protection of rights under Australian law must be influenced from another source, for example, European human rights jurisprudence. The unsatisfactory reasoning in Lenah case shows the weakness of Australian law. The Minister for Federal Privacy and Freedom of Information has indicated that the government is serious about upholding freedom of speech, and people's right to have a private life'. However, the judicial is yet to develop a cause of action for breach of privacy following the case of Lenah. References Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd. (2001). 208 CLR 199. Australian Law Reform Commission. (1979). Unfair Publication: Defamation and Privacy, Report No 11. Doyle, C & Bagaric, M. (2005). Privacy Law in Australia. Federation Press, 178. Lindsay, D. (2005). An Exploration of the Conceptual Basis of Privacy and the Implications for the Future of Australian Privacy Law. Melbourne University Law Review 4, 5. Mason, B. (2006). Privacy without Principle: The Use and Abuse of Privacy in Australian Law and Public Policy. Australian Scholarly Publishing,16. Michael, T. (2010). Remedies for breach of confidence in privacy contexts. Media and Arts Law Review 15, 290. Wacks, R. (1993). Personal Information: Privacy and the Law. Clarendon Press, 13. Read More