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CMN228 > Sessions 11 and 12 > Flashcards

Sessions 11 and 12 Flashcards

1
Q

What is defamation?

A

It is saying or writing something that damages or ruins a person’s reputation or makes other people think less of them.

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2
Q

What kind of law is defamation usually dealt with under?

A

Civil law.

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3
Q

Can defamation be a crime?

A

Yes.

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4
Q

What year did all states and territories make uniform defamation laws?

A

2006.

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5
Q

Does defamation have a reversal of the burden of proof?

A

Yes.

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6
Q

Who brings the action for defamation?

A

Plaintiff.

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7
Q

What must the defendant provide for defamation?

A

A valid excuse.

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8
Q

Defamation is where two things collide. What are these two things?

A

Free speech and reputation.

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9
Q

Who do defamation laws offer solace to?

A

Those who have had their reputation harmed.

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10
Q

What do defamation laws provide a means for handling?

A

Disputes and provide an avenue for compensation.

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11
Q

Do laws provide a deterrent for defaming somebody?

A

Yes.

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12
Q

Why are defamation laws a primary deterrent?

A

If a person is found to defame somebody, they have to pay a penalty.

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13
Q

Why are defamation laws a secondary deterrent?

A

If people see the laws in action, it is a deterrent.

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14
Q

Up until fifteen years ago, were states and territories’ defamation laws different?

A

Yes.

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15
Q

Do states defamation laws largely mirror each other now?

A

Yes.

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16
Q

Why do defamation laws now largely mirror each other?

A

Due to common law precedence.

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17
Q

What is precedence?

A

Laws that are set through the courts.

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18
Q

Before changes to defamation laws, what was the main issue?

A

It was more profitable to bring actions in certain states.

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19
Q

Does defamation legislation now include a max pay out?

A

Yes.

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20
Q

Is defamation oral or written?

A

Either.

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21
Q

What is written defamation called?

A

Libel

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22
Q

What is verbal defamation called?

A

Slander.

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23
Q

What kind of defamation occurs in a more permanent form?

A

Libel.

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24
Q

Do Australian defamation laws distinguish between slander and libel?

A

No.

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25
Q

Why do Australian laws not distinguish between slander and libel?

A

This is because technology has evolved.

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26
Q

Is defamation a tort?

A

Yes.

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27
Q

The idea of torts goes back to when?

A

Medieval times.

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28
Q

What is a tort?

A

It is a term meaning a wrongful act other than a breach of contract that injures another and for which the law imposes civil liability and as a violation of a duty (as to exercise due care) imposed by law

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29
Q

What is the essence of torts law?

A

If we do cause damage without a good excuse for doing so, then we have to make amends by paying a financial penalty (damages) to the person whose name we speared.

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30
Q

What is defamation controlled by?

A

Statute law.

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31
Q

Are sections of defamation law subject to interpretation at common law?

A

Yes.

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32
Q

What is the relevant statute for defamation in Queensland?

A

Defamation Act 2005.

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33
Q

When is a publication defamatory?

A

“If it is likely to cause ordinary, reasonable persons to think the less of the plaintiff or to shun or avoid the plaintiff”.

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34
Q

Can any living person be sue for defamation?

A

Yes.

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35
Q

Can children be sue for defamation?

A

Yes.

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36
Q

Can small companies sue for defamation?

A

Yes, if less than 10 staff.

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37
Q

Can a club sue for defamation?

A

Yes.

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38
Q

Can a non for profit sue for defamation?

A

Yes.

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39
Q

Can a recognisable small group of people sue for defamation?

A

Yes.

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40
Q

Who can be sued for defamation?

A

All those who took part in the dissemination of the defamatory material can be sued.

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41
Q

What three conditions must be met for it to be defamation?

A

Adefamatory imputation, the statement must identify the plaintiff and the statement must have been published (to a third party).

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42
Q

What must defamation contain?

A

Defamatory imputation.

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43
Q

What is a defamatory imputation?

A

It is a statement or meaning that makes others think less of, or ridicule, the person, group or organisation.

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44
Q

Does a defamatory imputation have to be words?

A

No.

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45
Q

What are two examples of defamatory imputations that are not words?

A

It may include a picture or cartoon.

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46
Q

What is an example of defamation in the political sphere?

A

An example is Newman and Bleijie who criticised that lawyers who represent bikers are part of bikie organisations.

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47
Q

What is a recent example of defamation?

A

A more recent example was Rebel Wilson was called a liar and said she was misrepresenting herself in order to get roles.

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48
Q

Is it defamation if what is said/written dents someones pride?

A

No.

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49
Q

Is it defamation if what is said/written makes someone feel hurt?

A

No.

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50
Q

Is it defamation if what is said/written makes someone offended?

A

No.

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51
Q

What must a defamatory imputation actually do?

A

Affect the way a person is thought of by others.

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52
Q

Can imputations be direct statements?

A

Yes.

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53
Q

What is a imputation that is a direct statement called?

A

A direct imputation.

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54
Q

What do direct imputations come from?

A

The natural and ordinary meaning.

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55
Q

Can imputations be indirect?

A

Yes.

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56
Q

What are imputations that are indirect known as?

A

Popular innuendos.

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57
Q

How do popular innuendos gain meaning?

A

From reading between the lines.

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58
Q

What is a special knowledge imputation also known as?

A

Legal innuedo.

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59
Q

When does a legal innuendo apply?

A

When a person has a certain level of understanding.

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60
Q

What does a legal innuendo enable an individual to do?

A

Put two and two together to take meaning from something and reach a conclusion (that not everyone would arrive at).

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61
Q

Can a defamation statement be direct or indirect?

A

It can be either.

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62
Q

What does the defamatory statement referring to the plaintiff mean?

A

This means that at least one other person understands that it refers to them.

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63
Q

Is the intention for defamation relevant?

A

No.

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64
Q

Does a reporter need to be careful of hidden plaintiffs for defamation?

A

Yes.

65
Q

What is an example of a hidden plaintiff for defamation?

A

Artemus Jones.

66
Q

What are the facts of the Artemus Jones case?

A

This involves a column posted in 1908 about a character called Artemus Jones. He was a lawyer who lived in London and was frivolous with money and cheating on his wife. However, there was another Artemus Jones who was also a lawyer. He was successful and was called a hidden plaintiff. He won a large payout. The moral of this is to document stories.

67
Q

What was the Scarlett Johansson dfamation case?

A

The character in the book was a lot like Scarlett Johansson. She found the publication to be offensive. She argued although why the book was not about her and it made her seem like she cheated on her partner. However, the payout was a small amount.

68
Q

What are the possible ways a plaintiff can be identified through defamatory material?

A

A person is named.
A person is named but another person with the same name sues.
No one has been named but a person meeting the description of the defamed person claims it refers to them and sues.
No individual was named but the defamatory article refers to a small group of which the plaintiff is a member.
A fictitious character has been named and the plaintiff shares the name.
The wrong person is named or depicted.

69
Q

What is required for publication of defamatory material?

A

All that is required is that one other person sees or hears the defamatory imputation for it to be published.

70
Q

What do he rules on publication of defamatory material mean?

A

Everyone is essentially a publisher.

71
Q

Where are the plaintiffs allowed to sue for defamation?

A

Wherever the defamatory material is published.

72
Q

What does the court consider when considering where the harm occurred?

A

Where the harm has the closest connection, the extent of publication and the extent of harm.

73
Q

Where does defamatory material have the greatest harm?

A

Place of work/life.

74
Q

What is a case regarding publication of defamatory material?

A

Dow Jones v Gutnick.

75
Q

What is the time limit on launching a defamation action?

A

Plaintiffs have one year from time of publication to launch the action.

76
Q

In extraordinary circumstances, how long does a plaintiff have to launch a defamation action?

A

Three years.

77
Q

Why is the time limit for launching defamation actions useless in some contexts?

A

The electronic age has rendered the time limits pointless because every repost is a fresh publication.

78
Q

What year was the first defamation case involving social media?

A

2012.

79
Q

What was the first defamation case in Australia about?

A

A teenager defamed the music teacher and she quit her job as a result.

80
Q

Should you be fair and balanced in you writing?

A

Yes.

81
Q

Should writers be moderate in terms of their writing?

A

Yes.

82
Q

Should writers make accuracy a habit?

A

Yes, especially in relation to names and figures.

83
Q

Should writers always offer a right of reply?

A

Yes.

84
Q

How should writers record everything?

A

In dated notebooks and/or diaries.

85
Q

What should writers record in the research process?

A

Details of who you spoke to, the date, what you spoke about.

86
Q

Why should writers record everything?

A

It can be invaluable and it can be called on in court as evidence.

87
Q

When should writers use voice recorders?

A

When interviewing or when seeking an interview.

88
Q

Why should writers use voice recorded?

A

It is hard for a person who has been recorded to say they were misquoted, or were not offered a right of reply.

89
Q

What does a defendant have to do for defamation?

A

A defendant who appears in court accused of defamation must convince a court that either they did not defame the plaintiff and that they had an acceptable legal excuse for the defamation.

90
Q

Under the Defamation Act 2005, there are nine possible defences to defamation. What are they?

A

Justification (truth), contextual truth, absolute privilege, qualified privilege, honest opinion, innocent dissemination, publication of public documents, triviality and fair report of proceedings of public concern.

91
Q

What is any defence to defamation likely to be defeated by?

A

Proof that the publication was actuated by malice.

92
Q

What is malice?

A

Malice is the desire to do someone harm, injury or cause suffering because of a hostile impulse or deep seated meanness.

93
Q

When does the truth defence apply?

A

This applies when the imputations in question are substantially true.

94
Q

What is the strongest defence to defamation?

A

Truth.

95
Q

For the truth defence for defamation, who is the onus on?

A

The defendant to prove that defamatory imputations complained about by a plaintiff are ‘substantially true’.

96
Q

For the truth defence, what must the defendant believe?

A

They must really believe what she/he wrote was true.

97
Q

Is proving truth (for defamation) difficult?

A

Yes.

98
Q

Why is proving the truth defence difficult?

A

What seems true to one person may not seem true to another.

99
Q

What is the contextual truth defence?

A

If the most serious of several defamatory imputation can be proved to be true, a defendant can mount a contextual truth defence for the lesser imputations that are linked to that.

100
Q

What is the reason behind the contextual truth defence?

A

The reason is the lesser defamatory imputations can do no further harm to the reputation of the plaintiff because the more serious matters are true.

101
Q

What does the defence of absolute privilege cover?

A

This covers any matter that emerge during proceedings of a parliamentary body or published in the course of a court or tribunal case.

102
Q

What does the defence of absolute privilege include?

A

Transcripts, documents, footage, evidence, judgements, orders/other determinations of a court/tribunal.

103
Q

What does absolute privilege protect?

A

Everything that is said (or documents that are tabled).

104
Q

When does qualified priveledge apply?

A

This applies where defamatory matter is published to a person (recipient) with a right to know such things.

105
Q

Who are people that have a right to know things under qualified priveledge?

A

Potential employers, health providers, police, teachers.

106
Q

Does the defamation defence of qualified privilege operate under common law or statute?

A

Both.

107
Q

Does the defamation defence of qualified privilege (when under common law) usually apply to media?

A

No.

108
Q

What does the defence of qualified privilege under common law protect?

A

Protects those compelled to give information, even if they can’t prove its truth.

109
Q

What does common law qualified privilege hinge on?

A

Hinges on reciprocal duty-interest relationship between person sharing info and those receiving it

110
Q

When does statute law qualified privilege apply?

A

It can apply if a defendant can prove recipient of defamatory info has an interest in having it

111
Q

What must publication be for statute law qualified privilege to apply?

A

Reasonable

112
Q

The statute law defence of qualified privelege only applies when?

A

The person defamed has been given opportunity to put their side

113
Q

For the statute law defence of qualified privilege, does the defendant need to prove truth of material?

A

Defendant does not have to prove truth of material, but should have tried to verify it

114
Q

Does the defence of qualified privilege also apply to publications in good faith for the public good?

A

Yes.

115
Q

Does the defence of qualified privilege relate to the publication related to the performance of public functions or activities of the person and publication in good faith in the course of a discussion of a subject of public interest?

A

Yes.

116
Q

What precedent did Lange v Australian Broadcasting Corporation 1997 set?

A

A precedent about political comment.

117
Q

What was the broad outcome of Lange v Australian Broad Casting Corporation?

A

Broad outcome was that the Australian Constitution ‘implies’ that there is freedom to communicate and comment on political matters.

118
Q

What does the outcome of Lange v Australian Broad Casting Corporetion acknowledge?

A

Acknowledges each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters here and abroad that affect the people of Australia.

119
Q

The defence of honest opinion only applies when…

A

This can only be used as a defence if:
The piece expresses an opinion on a matter of public interest
It is clearly opinion, not presented as fact
The article is fair and reasonable
It is based on proper material
The person who makes the comment honestly believes it

120
Q

When does the defence of publication of public matters apply?

A

It applies if the matter was contained in a public document or is a fair copy of that document, or is a fair summary of, or extract from, a public document.

121
Q

For the defence of publication of public matters to apply, why must the document be published?

A

For the informaton of the public or the advancement of education.

122
Q

What does the defence of publication of public matters allow for the republication of?

A

This allows for re-publication of official documents, or fair extracts from official documents.

123
Q

When does the defence of fair reporting of any court proceedings apply?

A

The matter was, or was contained in, a fair report of any proceedings of public concern.

124
Q

For the defence of fair reporting of any court proceedings, does it matter if what is reported is true?

A

No.

125
Q

Does the defence of fair reporting of any court proceedings apply to parliament?

A

Yes.

126
Q

Does the defence of fair reporting of any court proceedings apply to local council meetings?

A

Yes.

127
Q

Does the defence of fair reporting of any court proceedings apply to courts?

A

Yes.

128
Q

Does the defence of fair reporting of any court proceedings apply to public inquiries?

A

Yes.

129
Q

Does the defence of fair reporting of any court proceedings apply to standing commissions of inquiry?

A

Yes.

130
Q

What is an example of a standing commission of inquiry?

A

QLD Crime & Corruption Commission

131
Q

Does the defence of fair reporting of any court proceedings apply to international organisations or governments?

A

Yes.

132
Q

Does the defence of fair reporting of any court proceedings apply to international organisations in sporting tribunals?

A

Yes.

133
Q

What is the defence of innocent dissemination?

A

Defendant published matter merely in capacity of, or as an employee or agent, of a subordinate distributor who had no control over content.

134
Q

Who are examples of who the defence of innocent dissemination?

A

Newsagent, bookseller, librarian, wholesaler, retailer, copying service

135
Q

For the defence of innocent dissemination to apply to apply, what must the defendant not know?

A

Defendant neither knew, nor ought reasonably to have known, that the matter was defamatory.

136
Q

For the defence of innocent dissemination, the defendant’s lack of knowledge can not be due to?

A

Negligence.

137
Q

When can a defendant rely on the triviality defence of innocent dissemination?

A

If defendant can prove that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm, then they can rely on the triviality defence.

138
Q

Does a writer need to intend to defame someone for that person to sue?

A

No.

139
Q

Can defamation occur by accident?

A

Yes.

140
Q

Is the state of mind of the defendent relevant when awarding damages?

A

Not generally.

141
Q

Can the defendant take actions to mitigate damages?

A

Yes.

142
Q

What are three actions that a defendant take to mitigate damages?

A

Removing the publication of the defamatory matter, issuing a correction and making an apology to the injured party.

143
Q

What was the uniform defamation law cap in 2006?

A

$250,000.

144
Q

How do damages for defamation change over time?

A

Damages per imputation reviewed annually and indexed to the CPI.

145
Q

What is the maximum damage per defamatory imputation?

A

388,500.

146
Q

Is there a limit on the number of defamatory imputation per action?

A

No.

147
Q

For aggravated damages, are they capped?

A

No.

148
Q

For special damages, are they capped?

A

No.

149
Q

How can damages be mitigated for defamatory?

A

The amount of damages can be mitigated if defendant has made an apology to the plaintiff about the publication or a correction has been published.

150
Q

What do general and compensatory damages compensate for?

A

Compensate the plaintiff for the harm that they suffered from the defamatory matter.

151
Q

For defamation, does the plaintiff have to prove actual harm?

A

No, it is enough for the plaintiff to be merely identified and defamed.

152
Q

What are are special damages compensating for?

A

For any loss of income that the plaintiff may have suffered as a result of the defamation, or any other incidental expense incurred by the plaintiff as a result of the defamation.

153
Q

For aggravated damages, they should only be awarded when?

A

The court find that the defamation was intentional, malicious and deliberate or if the defendant intended to cause harm or injury to the plaintiff.

154
Q

How many defamation cases are settled out of court?

A

It is said that for every one case that makes it into court, 10 more are settled privately.

155
Q

If defamation cases proceed to trial, can a plaintiff elect for a jury?

A

Jury.

156
Q

What does a jury determine for defamation cases?

A

f jury determines matter is defamatory and no defence applies, judge will determine damages

157
Q

What are the outcomes for defamation cases?

A

A judge can award plaintiff a sum in damages, grant injunctions or order defendant to pay part or all of plaintiff’s legal costs.

158
Q

For out of court defamation settlements, the terms are usually what?

A

Secrete.

CMN228 (11 decks)

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