Torts Summary Defamation Elements (1) its defamatory, (2) the plaintiff is identifiable and (3) the defendant

nt published it. Published Matter is defamatory - the meaning of the words must be defamatory TWO QUESTIONS: What did the words Mean? Was that meaning Defamatory? Strict Liability: Intent (or malice) of any kind not necessary; objective Can be numerous imputations in one published material o Defamation Act 2005: essence of the action is publication of defamatory matter 6 1

s 8. there is only one cause of action despite multiple imputations s 4. matter defined
Applicable for Matter published before1 January 2006

Previous Legislation: Defamation Act 1974 (NSW), s 7A o o

Judge to rule on matters of law (reasonably capable of being inferred and being defamatory) this includes any defenses and damages where jury finds defamation. See Favell [2005] Meaning of Statement is question of fact for Jury to decide is it inferred and is it defamatory. BUT can be overturned if decision perverse or so unreasonable that no sensible jury could have made it. Cf. John Fairfax Publications Pty Ltd v Rivkin jury decision overturned

Meaning of the Statement Objective test: Standard of reasonable Ordinary Person per Favell v Queensland Newspapers Pty Ltd [2005] Imputations (the act or condition alleged against the Plaintiff in the publication) can be defamatory and include: o Something apparent to the ordinary reasonable person OR o Innuendoes (ie. Inferences) Can be inferred by the ordinary person- Popular or false innuendos OR Apparent to ordinary person with some specialist knowledge Legal or true innuendos 2

o Ordinary reasonable person has literacy skills can read between the lines and draw inferences. Gestures or other signs can be defamatory see Monson v Tussauds [1894] 1 3

Is the statement defamatory determined by Common Law Reducing someones reputation: anything about someone that results in the general public or the average person thinking less of them - Consolidated Trust Co Ltd v Browne (1948) cf. Random House Australia Pty Ltd v Abbott [1999] o Attributing want of capacity as holder of office is defamatory, though not exposed to hatred, contempt or ridicule. Est. in Parmitter v Couplan (1840) Ie. False statement discrediting a person is defamatory Defamatory at Common Law if: Likely to cause ordinary reasonable people to think LESS of a person or to SHUN or AVOID him/her. Common Law: Now easier to prove published matter causes Ordinary

Reasonable people to think less of P, or to shun or avoid him/her, than it is to prove that P is the victim of Hatred, contempt or ridicule. o Influenced by time and context Defamatory in past may not be defamatory today e.g. chastity, homosexuality, communist. In Random House Australia imputations of Promiscuity went further than mere unchastity. Influenced by culture and/or even minority community groups e.g. abortion case of Hepburn v TCN Channel Nine Pty Ltd [1983]; allegations P carried out abortions whilst not contrary to law, were abhorrent to a minority group of community. BUT cf greek witchcraft case of Loukas v Young [1968]; not defamatory in this day and age since no-one seriously believes in witches. Reporting Crime to Police: Byrne v Deane [1937] not defamatory Vulgar Abuse not defamatory suspected of a committing a crime? Defamatory if accompanied by other material suggesting guilt. Ridicule may or may not be defamatory. o See controversial ugly as defamatory case Berkoff v Burchill [1997] 8 4

Privacy as defamatory? see naked pics cases, (defamatory- exposed to ridicule) Ettingshausen v Australian Consolidated Press and Oberman v ACP Publishing Pty Ltd

The Plaintiff is identified

Who cant be defamed?? Ie cannot have defamation action brought against you by saying something against: Dead people - s10 DA 2005 Large groups (eg all Lawyers) See notes re Large v Small groups (cf individuals and small groups as long as they are identifiable at least through inference) Corporations s9 DA 2005 (except if less than 10people, or is not for profit organization). Government/Local Council Ballina Shire Council v Ringland (1994) and s9(c) DA 2005. Cf Individuals in Local Govt may sue per Jones v Sutton [2004] 7

Ie. P need not be specifically identifiable in order to be defamed: it is sufficient that some people might reasonably believe defamatory matter referred to P. Lloyd v David Syme & Co. and see Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) The Defendant published the defamatory matter 8

No defamation without Publication. Not defamation insulting someone to their face. Publication to ONE PERSON sufficient; Means of dissemination irrelevant o Exception - a defendants spouse per Wennhak v Morgan (1888) Hence: Publication, NOT authorship gives rise to damages and intention to publish or knowledge of publication is irrelevant So all** parties involved in publication or republication* can be liable e.g. posting of blogs by others on your website - Kaplan v Go Daddy Group [2005]; (He Established the site; maintained control over the site, liable even though not the author, since did NOT remove) 8 Republication of defamatory comments: wider circulation than initial statement

o In some circumstances, initial maker of statement may be liable for consequences of republication. BUT must be aware, or ought reasonably to be aware that the statement is LIKELY to be further published. *See McManus v Beckham [2002] and Harding v Essey [2005] 9

Defences: Common Law and Statutory Innocent dissemination o Common Law defences to protect innocent publishers eg. Newsagents 3 Elements for common law defence. o Statutory defence: s32 DA 2005 (NSW) innocent dissemination s32 also applies to internet service providers and internet content hosts; also covered by - Broadcasting Services Act 1992 (Cth) 10 10

Location: 8 Where publication is read/heard etc is relevant per Dow Jones v Gutnick (2002) but not where it is actually published Email Blogs: See also Kaplan v Go Daddy Group [2005].

Common Law defences to Defamation Now amended by Statute, Defamation Act 2005 A) TRUTH Current Law s 25 DA 2005, Defence of Justification (Substantial Truth) 12 12

s42 DA 2005, Proof of conviction of offence is evidence they committed the offence 13 Malice will not defeat the defence of Justification at common law Third Party origination of information cannot establish truth s 26 Contextual Truth (See further explanation of s26(a) and (b) TOP Page 14) 13

o Overall effect of True imputation swamps untrue imputations; That is, doesnt further harm the reputation of P. o Dennison v Refshauge (His reputation could not be further harmed) B) FAIR COMMENT Common Law now Varied by Statute; s 31 Defences of Honest Opinion Elements of Common Law, still relevant in NSW o Must be Statement of Opinion, NOT Fact (s31(1)(a)) Note comments re Mixing of facts and comments, Harrigan v Jones 16 15

Matter on which a comment is based should be available NEAR the comment Exceptions: A) Matter is notorious and well-known B) Matter concerned is a work of entertainment, eg. Radio/ TV program (Channel Seven Adelaide Pty Ltd v Manock; Issue of Statement v Facts)

Context mat determine characterisation of statement. Eg. Front of newspaper Dishonourable Motive statements: In general regarded as statement of opinion. (OShaughnessy v Mirror Newspapers Ltd (1970) 17

o Must be a comment on matter of public interest, not merely private matter. s 31 (1)(b)

See Francome v Mirror Group Newspapers, private life of celebrity protected if matter not relevant to public life.

o Must be based on matter which is TRUE or based on a privileged document like Hansard. (s31(1)(c) and definition of proper Material in s 31(5)) Succeed if fairly based on bits true, even if bits wrong. 17 18 o Opinion must be Honestly Held , need not be rational Defamation Act, 2005 section 31 17

Defence differs according to WHO made statements, employee or agent of D, or stranger o P may defeat Ds defence of truth: - if can prove maker of comment didnt believe in truth of comment. o Restaurant Defamations in Australia: John Fairfax Publications Pty Ltd v Gacic [2007] Is defamatory to injure a business reputation, whilst make no imputations to proprietors moral character. o Malice does not exclude the defence of honest Opinion. Cawley v Australian Consolidated Press Ltd [1981]

C) PRIVILEGE Common Law recognises Absolute Privilege and Qualified Privilege, extended by Defamation Act 2005 circumstances Absolute Privilege (Parliamentary Privilege) o Statements made in Parliament or course of judicial/ quasi judicial proceedings protected by absolute privilege. o s 27 DA 2005, relevant tribunals etc attracting the privilege o Member of Parliament has no defence, repeating comments outside parliament Erglis v Buckley [2005] Publication of Public Documents and Reports of Proceedings o s 28 Publication of public documents and s 29 fair and accurate news reports of proceedings are privileged.

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o Defence can be defeated if P shows that publication was not honestly made for the information of public or advancement of education BUT See criticised decision in Rogers v Whitaker (1992); HC held not entitled to rely on Judges summary of earlier proceedings.

Qualified Privilege Promote welfare of society 20 The immunity granted to publish defamatory statements about another is lost if privilege is abused: o Reciprocity of Duty or Interest. D has interest/duty to publish and person receiving publication has corresponding interest/duty to receive it. Bashford v Information Australia (Newsletters) Pty Ltd 21 Can apply in Community Groups: Bennette v Cohen 22 SMEC Holdings v Boniface [2007] Defence did not succeed since people who received the email had NO relevant interest in the matters; and allegations motivated by Malice. o Defence Defeated if: 22 (1) D motivated by Malice, ill-will, spite or other improper motive; OR (2) D knew the statement was false OR (3) D introduces material unconnected to circumstance which gave rise to the privilege.

NSW Defamation Act 2005, section 30 23 When defence not available at Common Law, extended to s30 DA 2005; o s 30 does not require publisher to have duty to publish; Recipient has interest (or apparent interest) in receiving the published matter AND conduct of publisher has been Reasonable.

o Provides some free speech Protection for mass media because of reciprocity of duty and interest o s 30(3) list of factors determining reasonableness of publisher 23 o Lange Privilege; Lange v Australian Broadcasting Corporation (1997) 23/24 Constitutionally Implied Freedom of expression; to discuss Political and Governmental matters. Since every member of Australian public has an interest in dissemination of material concerning government and politics. SO, If publication concerns governmental and political matters D cant show reciprocity of duty and interest, then D can still claim qualified privilege if conduct in publishing was reasonable See Obeid v John Fairfax Publications Pty Ltd [2006] 24 24/25

D) OFFER TO MAKE AMENDS s13 D can make an offer to make amends to P when becomes aware has published defamatory imputation about P. Expires 28 days (s 14) after P complained in writing

s 15: Includes offer to publish correction and Ps reasonable expenses and may include apology and offer to pay compensation.

E) TRIVIALITY 25 s 33 Likelihood of harm at time of publication. Not concerned with whether harm occasioned or not. Jones v Sutton [2004] o s 33 requires court to look at circumstances at time of publication and to consider prospectively ... the likelihood of harm ensuing. Matters personal to P may not be relevant.

REMEDIES

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