DEFAMATION ELEMENT 3 Flashcards
- Publication is necessary
Third basic ingredient - defamatory matter must be communicated to a third person (other than the plaintiff or defendant’s spouse)
Where published by newspaper or media unnecessary to show it was communicated to a specific person (unless innuendo - would need to be published to person of that group)
Publication further general elements
- each communication is a seperate publication for which proceedings may be brought
Publication occurs at the place communication is affected
No liability for accidental publication as long as there is no negligence
- note, can be liable for unintentional defamation published intentionally but not for intentional defamation published unintentionally
No liability where publication is due to a wrongful act which could not have been foreseen (e.g government document which someone gets a hold of)
- Chain of publication
Everybody involved in the publication of a defamatory statement may be liable. Each publication creates a seperate cause of action - plaintiff can sue those mainly responsible
Normal rules of remoteness apply to whether publisher is liable (McManus)
What amounts to publication -
General
By media, poses little difficulty
Publication can also be constituted by making the statement to just a few or one other person
Where contained in a telegram or postcard, even if addressed to plaintiff, may constitute defamation because may be read by others during the course of transmission (Huth)
But a statement contained in a sealed envelope to a person doesn’t amount to publication if an unauthorised person opens it
What amounts to publication
- THE INTERNET
General
Publication by internet is publication - can occur both intentionally and unintentionally
Argument that the ‘culture’ of the internet allows more robust comments than elsewhere and trading insults is therefor acceptable has been rejected (o’Brien)
Courts now tend to be unsympathetic to arguments based on ignorance about how the internet works (stocker)
What amounts to publication
THE INTERNET
third party publication
Well established that parties are liable for repeating statements made by others
Responsibility for publication could flow from any invited comments about articles which a defamatory.
Murray v Wilshart: a person will be treated as publishers of posting by others if they knew about the statement and failed to make it move it within a reasonable time that it can be inferred they are taking responsibility for it
What amounts to publication
THE INTERNET
hyperlinking to a defamatory webpage
Can be a form of liability with regard to hyper linking to a defamatory webpage
KARAM- sued individuals and media over comments on websites which he claimed suggested that he lacked integrity and had behaved improperly … website established to invite comment from the public. Media did not report what was said but contained hyperlinks ….
Case was settled but judge commented could be liable for using a hyperlink if you had knowledge where it led and intended the audience be transferred to the webpage
Also distinguished between a shallow (taken to a homepage of a website but not directly to article) and a deep hyperlink (directly to the material) - argued that where a deep hyperlink is used, should be responsible for the information you are linking your audience to
New Zealand - question has been left open
What amount to publication
THE INTERNET
isp liability
People have brought claims against google, suggesting URL results have prioritised defamatory material about them
No actual case in NZ - recognition in A V Google HC thought the case was too novel to deal with but expressed a view that it may need to be considered whether there has been a ‘stamp of human intervention’
HC Aus took a similar approach and held that it is strongly arguable that doodles intentional participation in the communication of allegedly defamatory results to google search engine users supports a finding that google published the defamatory results (trkulja)
What amounts to publication
THE INTERNET
place of publication
Dow Jones - online publication created in New York, Jones wanted to sue in Australia because the material was downloadable in Australia
HC accepted this approach, held the place of publication is not where the information is uploaded but where it is downloaded
- mr g was able to show he had a reputation in Australia so claim succeeded
Court: material published on the web is not available in comprehensive form until downloaded, it is at that point the damage to reputation may be done
Normally, the place of downloading will be the place defamation occurs (king)
This approach has some degree or acceptance in New Zealand (sellman)
As long as individual can show they had a reputation where information can be downloaded, they can sue
What amounts to publication
THE INTERNET
procuring publication
One case suggested that it is possible to argue a person who procures or organises another to publish online can be liable for publication
Sellman - patties argued sellman had paid slater or fed information for him to publish
- even if you are not the actual publisher, can be liable for procuring publication
What amounts to publication
THE INTERNET
multiple publication rule
Loutchansky - confirmed that multiple publications can arise from initial publications on the internet
NZ, UK and Aus Generally follow the rule that it a matter is published and the same thing is published over and over all those publications can be sued on.
This crates a form of ‘zombie publication’ - libels never die, each time information is downloaded in combination with the multiple publication rule, limitation periods may be undermined
England has resolved this through a ‘single publication rule’ - something can only be published and sued on once in relation to the internet. Strong move in Australia to follow this, and the UK defamation act provides a single publication rule
New Zealand - addressed this in Sellman. Palmer J concluded a change in common law was not justified - policy reasons in support of regaining the rule. Thus, in NZ a defamed person is able to sue for the continuing publication
