Defamation Flashcards
Why does this law exsist?
To protect a person’s reputation.
If they don’t have a reputation to protect? Grey area, maybe a convicted criminal.
What is defamation?
The statement is defamatory (words must be defamatory: coward, cheat etc.)
The statement refers to the plaintiff (body, company)
The statement is communicated to a third party. (distributed).
Definition
A statement which may tend to lower the plaintiff in the estimation of right-thinking members of society generally.
Examples
Disloyal, devious, drunkard, cowardly, lacking in morals, unfaithful, unfit for the job, behaved like a hooligan, lured someone away from the marriage, manipulated a relationship. Imputations of criminal conduct, or reporting criminal offending.
Homosexuality is unlikely to be an insult unless the person is in a heterosexual relationship
ie. think of the Felicity Ferrit case
Relationship between Defamation and Imputations of Insolvency
That becomes a self-fulfilling prophecy. Business can sue you if it can prove you have caused financial damage. If you comment “about to go bankrupt, business collapsing” then this does often happen as people stop placing orders, forming contracts or visiting the business. Then can easily prove a quantifiable financial loss. Loss of reputation also.
ie. think of the Ray Columbus case
Can I report something someone else has said?
It does not matter if you are reporting what someone else is saying. It is not a defence if you are repeating something that has been broadcast or reported by other media – you are responsible for what goes out over your station, and you can be sued for it.
ie. think of the Cairns cricket case
Why is the legal procedure for winning a defamation case?
Prove it on the balance of probabilities. “Proving things beyond reasonable doubt” - doesn’t apply on a civil court case where defamation takes place.
Truth Defence
You have to be able to prove it properly, not only by the reporters potentially giving evidence, showing notes and recordings, but also through documents and records. Court level proof, photographs, evidence, can reference past convictions. Keep your notes, make a file of documents.
Proving the sting of the defamation. S 8 (3) (a) of the 1992 Act provides that: truth will succeed if the defendant proves that the imputations contained in the publication of the proceedings were true or not materially different from the truth.
Repeating allegations that were initially made meaniIf you fail to win that defense in court, then you’ve repeated it and can increase damages against the media outlet.
Honest Opinion
Honest opinion must be opinion, must be based on verifiable facts that are true, and opinion must be genuine. Facts (detail how conclusions were made).
Responsible communication on a matter of public interest.
Public interest: should invite public attention before it affects welfare of citizens (not just interesting). Apply when outside qualified privilege but public interest is so strong.
Relevant circumstances to be taken into account my include:
The seriousness of the allegation. The more serious the allegation, the greater the degree of diligence to verify it. Effort put into verification.
The degree of public importance.
The urgency of the matter – did the public’s need to know require the defendant to publish when it did, taking into account that news is often a perishable commodity.
Also the reliability of any source. In most cases it is inherently unfair to publish defamatory allegations of act without giving the target an opportunity to respond. Failure to do so also heightens the risk of inaccuracy.
Also the tone of the publication (woman’s day vs stuff). The inclusion of defamatory statements which were not necessary to communicate on the matter of public interest.
Neutral Reportage
Where the public interest concerned lies in the fact that the allegation was made, rather than the truth of its contents, the publisher may be relieved of the usual responsibility or obligation of attempting to verify the contents as distinct from verifying the making of the allegation.
BUT: Publisher should not subscribe to any belief in the truth of the allegation and not adopt it as their own.
Relevant considerations will include:
Whether the source of the information is disclosed in the publication.
The tone of the publication, including whether the allegations have been embellished.
Timing may also be relevant. If, for example, the allegation or its context was stale or there was some other ulterior reason for the timing of the publication, then reportage may not be available even if the report was otherwise full, fair, and neutral.
Does it matter if the intention wasn’t to defame?
No, lack of intention is irrelevant. Innuendos and straight accusations are both defamatory
Can there be group defamation?
Yes, this can be against families or corporations.
What are implications of the defamatory matter being communicated to a third person?
Each communication is a separate publication for which proceedings may be brought. Publication occurs at the place communication is effected.
Every person who publishes or causes to be published, defamatory material, is liable as a publisher of that material and any person who participates in such publication may be liable.
On the Internet: There is a direct liability for your web publication, or an indirect liability by link, or by comment invited on your website (platforms ie twitter). Social media. Breached a suppression order in a link under one of his stories.
You may be liable if you had knowledge and there was human intervention of some kind.
Liability for publication of hosted comments on the internet. You will be a publisher of postings by others.
Where you know about the defamatory statement and fail to remove it within a reasonable time such that it can be inferred you are taking responsibility for the statement (called the ‘actual knowledge and failure to act test’.
How does a defamation case start?
if someone unjustifiably says something that damages your reputation they are subject to being sued. If someone makes an unjustified slur/particularly false or damaging, the key is you should be able to get money from them to compensate the damage to your reputation. You need to prove your reputation has been damaged by untrue content (normally published content) .
