Defamation

Question 1

what is a tort

Answer 1

A tort is a civil wrong which a person commits against another (personal injury, property damage, financial loss) which the innocent party usually claims damages

The law of tort deals with situations involving claims for damages where no contractual promises have usually been made but where a special relationship other than a contract has been in existence.

Question 2

How is tort law different from contract law?

Answer 2

Contract law deals with how a valid, enforceable contract is formed and what should happen if the parties to the contract fail to perform as promised. Tort law deals with the duty of care that the law imposes on all of us and what happens when we breach that duty and cause personal injury and property damage to others

Question 3

• What is the purpose of the law of civil wrongs?

Answer 3

It is for justice to be achieved by transferring the loss from the victim to the wrong doer

Question 4

• What is the common thread that holds the different types of torts together?

Answer 4

To commit an intentional tort, it follows that you must do something on purpose

Question 5

• To what general body of law do both tort and contract law belong?

Answer 5

Civil law

Question 6

• What are 5 ways in which civil law is different from criminal law?

Answer 6

• Juries are mandatory for certain crimes. …
• Civil law is about resolving disputes, while criminal law deals with crime. …
• Remedies and penalties. …
• The standard of proof is different
• Familiarity with criminal proceedings.

Question 7

What needs to be proved to a jury for an accused person to be found guilty of criminal negligence?

Answer 7

the prosecution must prove beyond reasonable doubt that the defendant Committed an unlawful or negligent act,

Question 8

what are the Defamation elements the plaintiff must prove:

Answer 8

1. Defamatory matter- the matter complained of must convey a defamatory imputation
2. Reference to the plaintiff- the matter must be capable of allowing others to know that it refers to the plaintiff
3. Publication of the matter- must have been communicated to at least one third party

Question 9

when will an imputation be defamatory?

Answer 9

the plaintiff’s reputation is lowered
the person Is likely to be injured in his or her trade, profession, or business; or
the plaintiff is exposed to ridicule or others are caused to shun or avoid him

Question 10

what test is applied to decide if a publication is defamatory

Answer 10

The ordinary reasonable person test.
if an ordinary person thinks less of the plaintiff because of what has been published about him or her- the matter would be determined as defamatory.
The ordinary person needs to consider the natural and ordinary meaning of the words.

Question 11

A person’s trade is very important to that person’s general standing in the community… continue

Answer 11

There are ways to injure a person in his or her profession when comment may cause an ordinary reasonable person to think less of that person in their trade or profession.
Comments about a person may not ordinarily be defamatory, however the same comments may injure a person in his or her business, trade or profession

Question 12

Even is a plaintiff’s reputation is not injured, they can still file for defamation if:

Answer 12

Even is a plaintiff’s reputation is not injured, they can still file for defamation if:
An imputation places the plaintiff in a ridiculous light or
A person is socially embarrassed by a defamatory statement
Even occur in situations where the imputation does not suggest the plaintiff has done anything wrong

Question 13

can blurred photographs, fictitious names or a name in the alphabet be enough?

Answer 13

no. if sufficient facts in the article make it clear to a reasonable person that the article refers to the plaintiff, the defendant can be sued for defamation

Question 14

what happens when a class of people is defamed?

Answer 14

it may be possible for the plaintiff to show-
that he/she is a member of the class defamed
that the matter is therefore reasonably referable to him or her

Question 15

explain publication of material

Answer 15

it is a communication of defamatory material to a person other than the person defamed. it can occur through spoken word, a sign, a signal, a gesture, written word, photograph or even facial expression.

any person who repeats a defamatory statement will be liable for the republication, even if it only repeating the statement of another person.

Question 16

what is the defence of INNOCENT DISSEMINATION

Answer 16

it is available to a subordinate distributor who can prove they did not know the information being published was defamatory and was not in any way negligent in publishing the defamatory material

Question 17

who is the plaintiff and defendant?

Answer 17

The Defendant is the individual(s) being accused of a crime.

the Plaintiff is the person(s) who has alleged that a wrongdoing has been done to the them.

Question 18

making a claim for defamation-

in dot point explain

Answer 18

• Has to be made in either district or supreme court and may involve a jury
• Must begin within one year from date of publication of the matter
• can result in a court ordering the unsuccessful party to pay the legal costs of the other party.
• If someone has published or said something about you that others have seen or heard, and depending on the content of those words or images, in addition to a possible claim for defamation you may also have other legal avenues to consider

Question 19

what if you need something removed form a social media site?

Answer 19

If you need something removed from a social media site, the Office of the Children’s eSafety Commissioner publishes a list of social media services safety centres, which will provide you with information and contacts to assist you to make a complaint to the relevant website and ask for content to be removed. Prior to having the content removed, you should retain a copy of the content (e.g. take a screenshot or print the material).

Question 20

Explain the amendments to the defamation act 2005

Answer 20

• a single publication rule (for multiple publications of the same defamation matter), meaning
the start date of the 1-year limitation period for each publication runs from the date of the first publication; and
o for an electronic publication, the first publication occurs when it is uploaded for access or sent to the recipient (rather than when it is downloaded or received);
• a requirement to issue concerns notice prior to going to court;
• a serious harm threshold to be established by a party taking action for defamation – failing which there may be cost consequences to the plaintif
• two new defences, including a public interest defence and a defence applying to peer-reviewed statements/assessments in a scientific or academic journal; and
• greater clarification around the cap on damages for non-economic loss, setting the upper limit on a scale and applying regardless of whether aggravated damages apply.

Question 21

Remedies- damages and injunctions explain

Answer 21

Damages- Damages is a sum of money which is awarded by the courts for the purpose of replacing the monetary value of property or rights which have been lost or damaged.
Injunction- Court order directing a person to do a specific thing or, more commonly, to not do a specific thing. PRINCIPLE REMEDY IS DAMAGES.

Question 22

1. Explain the difference between general and special damages

Answer 22

Special damages refer to ‘those items of loss which the plaintiff has suffered prior to the date of trial and which are capable of precise arithmetical calculation—such as hospital expenses’. General damages refer to all injuries which are not capable of precise calculation

Question 23

what is a concerns notice

Answer 23

written letter sent to the person who made the defamatory statement adequately describing the alleged defamatory material and seeking a remedy (including an apology).

Question 24

An offer to make amends-

Answer 24

they are a legitimate means for a defendant to end litigation before it reaches the court. The offering and acceptance of amends means that an aggrieved person cannot assert, continue or enforce an action for defamation.

Question 25

2. A word used in defamation which refers to words pictures gestures or anything that is conveyed about the person making the complaint

Answer 25

imputation

Question 26

The responsibility to prove their case is called what

Answer 26

Onus of proof who has the onus of proof- the plaintiff

Question 27

7. What is the standard of proof required in civil law

Answer 27

balance of probabilities will be met if you can successfully establish that the claim you are making is more probable than not.

Question 28

5. An order by the judge to stop an action or to carry out an action is called

Answer 28

injunction

Question 29

The general term which relates to compensation as a remedy is called

Answer 29

damaged

Question 30

9. There are other ways to stop disputes without going to courts. What is the method-

Answer 30

Alternative dispute resolution

Question 31

The three most commonly used defences

Answer 31

1. Truth (justification) – If a person publishes defamatory statements about another and even if the person defamed does not wish to reveal those matters publicly, it will not matter provided that those details are true.
   Contextual truth can also be used as a defence under Section 26 where more than one imputation is made which is substantially true and where an untrue defamatory imputation made does not further harm the reputation of the plaintiff because of the truth of the other imputations.
2. Honest Opinion (Fair Comment)
   This is a defence for stating an honest opinion on a matter of public interest, based on the idea that a citizen should have the right to comment or express an opinion on matters of public interest and on people who take part in public affairs. The opinion must be based on substantially true facts.

Section 31 of the Defamation Act 2005(Qld) requires that the opinion be based on ‘proper material’ – there must be sufficient truth in the facts upon which the opinion is based to be regarded as ‘proper’.
This is the defence able to be used by art, literary and food critics; sport commentators, movie reviewers, journalists etc.

3. Privilege
   Even though a statement is defamatory, the person responsible for making or publishing it may be able to avoid liability for it if the defence of privilege is successfully pleaded. There are two degrees of privilege:

Question 32

what are the two types of priveleges

Answer 32

a. Absolute privilege – this defence is contained in s27. Some members are protected from the consequences of the defamatory nature of the material they publish, because they hold positions in the community which need to be protected to enable the democratic institutions of the community to function satisfactorily. This includes Parliamentarians, judges, witnesses and counsel in court hearings – those who publish public documents and reports of official enquiries. However, they cannot make comment outside of their duties – eg. outside Parliament, outside the court room etc.
b. Qualified privilege – protects the reporting of matters of public interest to individuals provided the conduct of the defendant in publishing the defamatory material must be reasonable in the circumstances. The person to whom the defamatory material is published must have an interest in obtaining that information. It will only arise when the statements published are untrue (truth is already a defence). The privilege is qualified because if it is done out of malice then the defence is not available. Section 30 outlines that a major consideration in determining whether a person has acted reasonably in the publication is the extent to which that person has tried to ensure the source of their information was accurate and the extent to which the publication distinguishes suspicions, allegations and proven facts.

Question 33

how are injured people compensated for injury, loss or damages

Answer 33

compensatory damages- money awarded to a plaintiff to compensate for damages, injury, or another incurred loss. Compensatory damages are awarded in civil court cases where loss has occurred as a result of the negligence or unlawful conduct of another party.

Question 34

how does an offer of amends impact on the rights of the plaintiff.

Answer 34

Because they are a legitimate means for a defendant to end litigation before it reaches the court.The offering and acceptance of amends means that an aggrieved person cannot assert, continue or enforce an action for defamation.