BLAW10002 Lecture Notes - Lecture 4: News Uk, Defamation Act, Natural Person
14 May 2018
School
Department
Course
Professor
Defamation Law: Plaintiff Side
What interest does the tort of defamation protect? (p.51)
•Individual reputation - what other people think about you
-Differs from privacy - not personal information directly
-Relationship with personal information - revealing private details of life can be defamatory
-If you are defamed and people shun you, that effects your private life
-In Australia, relationship between privacy and reputation in case law is somewhat unclear
•Central issue: reconciling protection with competing demands of free speech
Sources of Law
•Common law - in Australia mostly used
•Modified by the Uniform Defamation Acts - in Victoria the Defamation Act 2005 (Vic)
-Supplements the Common Law
-Provides a range of defences in addition to defences in Common Law
•Main purpose of Act was to get uniformity between the states/territories
-Plaintiff could choose which jurisdiction best suited - unfair “forum shopping”
-Widespread information due to internet
-Prior to Act, if defamatory content was distributed over multiple jurisdictions, complex
litigation as different laws
Cause of Action !
Must satisfy all three in order to bring about a cause of action
1. Publication (p.57-59)
•A communication to at least one person other than the claimant
•Any type of publication (Any medium - e.g. a statue)
•Each and every publication satisfies a separate course of action
-Technically each copy is a separate cause of action (although often litigated together)
•Republication = publication
-Repeating information that is defamatory - you are liable
-If you pass on information to the media, you can be liable for republication as it is
reasonable to assume they would republish it
•The place of the download is the place of the tort:
•Unintentional publication - no liability for defamatory information published accidentally
Dow Jones v Gutnick (2002) 210 CLR 575
•DJ published internet article about Gutnick’s improper business dealings - information untrue,
deemed defamatory
•Article downloaded all around the world only about 200 downloads in Victoria - Gutnick sued
based on torts committed in Victoria
•Although published by an American publisher, actionable in Victoria - the place of download is
the place of the tort
•However, under the Speech Act in the US, courts cannot enforce order from Victorian court (first
amendment protection)
2. Identification
•Direct identification - naming / referring to a widely known title/office
-By title e.g. “Prime Minister of Australia”
•Indirect identification (where recipient has knowledge of special facts)
-e.g. referring to someone by address - not everyone knows who lives at that address
•Group identification
-Group must be small and particular
-e.g. the directors of a company, all government ministers
-A group does not have a independent existence and cannot be defamed
•Intention irrelevant
-Important, especially if a common name to insert other identifying factors (age, suburb,
company position)
3. Defamatory meaning (p.92-93)
•To an ordinary, reasonable recipient (i.e. reader, viewer, listener)
-How would they understand what is published
•Context of the whole of the publication
-Look at publication as a whole - cannot pick out sections
-Ordinary reader taken to read the entire article (even if headline on its own seems
defamatory and most may be seen to read the headline)
-What is part of the publication? What about a poster advertising the newspaper? A series
of articles - read together or separate?
-How do you define the scope of the publication on the internet? Single Facebook post or
entire profile? One page on website or whole website? Blog post or comments on your
blog post? A single tweet or something that is hyperlinked in a tweet?
•Natural and ordinary meaning/true innuendo (p.54-55)
-Court must decide single meaning
-Natural and ordinary meaning can include inferences and implications (that reasonable
person understands)
-True innuendo - recipient has specific knowledge that gives the text a specific meaning
•Intention irrelevant
Division of roles between judge and jury (p.56)
•Judge determines whether or not the publication has the capacity to be defamatory
•Jury then must determine:
-What does it mean?
-Is the meaning defamatory?
•If determined to be defamatory, case then gets to jury
What is defamatory? (p.52-53)
The imputation would:
•Cause the claimant to be shunned or avoided
Morgan v Lingen (1863) 8 LT 800
•Defendant claimed plaintiff to be insane
•Defamatory as it caused plaintiff to be shunned and avoided
Charleston v News Group Newspapers Ltd [1995] 2 AC 65 (p.93-94)
•Photos of plaintiff photoshopped onto bodies of actors - caption under photo stated falsehood
•Ordinary reader deemed to have read captions under photos, therefore not defamatory
Document Summary
What interest does the tort of defamation protect? (p. 51: individual reputation - what other people think about you. Differs from privacy - not personal information directly. Relationship with personal information - revealing private details of life can be defamatory. If you are defamed and people shun you, that effects your private life. In australia, relationship between privacy and reputation in case law is somewhat unclear: central issue: reconciling protection with competing demands of free speech. Sources of law: common law - in australia mostly used, modi ed by the uniform defamation acts - in victoria the defamation act 2005 (vic) Provides a range of defences in addition to defences in common law: main purpose of act was to get uniformity between the states/territories. Plaintiff could choose which jurisdiction best suited - unfair forum shopping . Prior to act, if defamatory content was distributed over multiple jurisdictions, complex litigation as different laws.
