Has Sam defamed Larry in his online article?

The Law of defamation is governed by provisions of common law and supplemented by the Defamation Act 2005. The intention of the law of defamation is to safeguard the reputation of individuals simultaneously as well as foster the people’s right to freedom of expression. Anyone can institute a civil action in defamation against another party with the intention of protecting his or her reputation from a defamatory communication.[1]  The plaintiff in such a case is required to prove and satisfy three elements for him to provide prove of defamation successfully. First, the alleged defamatory communication must have been published. Secondly, the individual aggrieved by such defamatory communication must have been identified in the publication. Finally, the piece of communication must be defamatory in that it must bring the aggrieved person into hatred, contempt, or ridicule. In addition, it must be likely to cause any ordinary reasonable person to think less of, to shun, or to avoid the person defamed.

Considering the elements of defamation claims, it is clear that Sam published information on his online magazine, Female’s Fortnightly. Secondly, as per the second element, it is possible to identify an individual to whom the publication refers to. By referring to the Secretary of the Department of Community Well-Being, one can quickly identify the holder of such an office as Larry Leisure-Suit. Thirdly, as per the third element, the publication has apparently led to the Minister of Community Wellbeing threatening to sack him. Sacking him is a manifestation of the contemplated shunas a result of the publication of defamatory material. As such, in my opinion, Sam has defamed Larry and can be successfully sued by him.

 

Jurisdictional Issues that arise in relation to Female’s Fortnightly

There are various jurisdictional issues when it comes to civil actions in online defamation cases. One is the issue of the fact that Female’s Fortnightly is hosted in a United States server. Second, the subscribers to Female’s Fortnightly may be residing in different Australian jurisdictional territories. This situations raise issues of the need for the courts to determine the place of publication of any material available to subscribers of Female’s Fortnightly. However, relying on the Australian High Court’s decision in Dow Jones & Co Inc. vGutnick, it can be held that any defamatory material on Female’s Fortnightly will be subject to the defamation laws of any state in which the content is accessed and or downloaded.[2]

Defenses that may be available to Sam

The types of defenses available in defamation claims include the primary defenses of justification and fair comment as well as defenses of qualified and absolute privilege.[3]Truth is a complete defense to a defamation action in all of the Australian states[4] that underlie the primary defenses of justification and fair comment.[5]

Justification as a defense in defamation suits is only available where the contents of a published communication are accurate both in substance and effect.[6] The defendant is required to present evidence to substantiate the truthfulness of allegations and assertions made in a given publication, failure to which such a defense fails. Honest opinion as a defense in defamation suits is available if the defendant published a communication based on the expression of an honest and fair opinion rather than due regard to available facts that can be verifiable.[7] If the opinion expressed is motivated by malice and

Qualified privilege is only available as a defense where the defendant in a defamation suit had an actual or apparent interest in a particular subject matter of a communication. Alternatively, it is available where the audience has a corresponding actual or apparent interest to receive the communication.[8]In relying on the qualified privilege defense, the defendant must act responsibly in publishing the communication that is the basis of a defamation suit. If the publication is prompted by malice on the part of the defendant, then the defense fails. Absolute privilege is only available where the publication of a communication draws from contents contained in parliamentary and court documents and reports.[9]

The most probable defenses available to Sam are those of justification as well as that of fair comment. Qualified and absolute defenses are not available considering their concern for addressing defamation suits concerned with official parliamentary and court documents and reports. Although the defenses of justification and fair comment are available, it is notable that Sam fails adequately to satisfy the conditions of the two defenses. This failure makes it difficult for him to rely on them if a defamation suit is brought against him.

 

 

Has Sam breached Tom’s confidentiality? (5Marks)

As such, journalists have a legal obligation to protect the identity of a source hence maintaining confidentiality. According to the Evidence Act 2011, an informant refers to an individual who furnishes information to a journalist in the ordinary course of the journalist’s duty in the expectation that the information may be published in any news medium.[10]Journalists have a professional duty to protect the confidentiality of the identity of their informants.[11] In addition, the journalists’ code of ethics imposes a prohibition on the part a journalist from revealing the identity of a source with whom he has a commitment to confidentiality. Following this definition, it is clear that Tom might be regarded as Sam’s informant. By Tom indicating that the information he furnished Sam with was supposed to be only between them, there was an express obligation of non-disclosure on the part of the confidant.[12]This express obligation gives rise to the protected confidence whereby Sam is deemed to be under an express or connoted obligation not to disclose the contents of their communication.[13]It is thus clear that Sam has breached Tom’s confidentiality by using information provided by Tom in his publication. As per the Evidence Act, only professional journalists are shielded by the Journalist Privilege. This situation potentially implies that Sam, as a non-professional journalist may be compelled to reveal the identity of his source, who is Tom. If such compulsion happens, then Samwill have breached Tom’s confidentiality.

 

 

Has Sam committed an offence(s) under the Listening Devices Act 1992 (ACT)? (5 marks)

The utilization of listening devices to record the conversation of a person(s) without their knowledge is an outright intrusion into the right of privacy of those persons.

According to the Listening Devices Act (1992), every individual is prohibited from utilizing a listening device for the purposes of recording a private conversation for which that person is a party.[14] Section 4(3)(b)(ii) further notes that Section 4(1)(b) will not apply only in circumstances where the principal party to the conversation consents to the utilization of the listening device.  However, such consent should be relied upon provided such recording is not made for the purpose of communicating or publishing the conversation to any person(s) not a party to the conversation.[15] An individual who is party to a private conversation and divulges information from a record of the private conversation with the knowledge that the communication was recorded directly or indirectly with the aid of a listening commits a criminal offence.[16] From these provisions as outlined in the Listening Devices Act (1992), it is clear that Sam has committed a criminal offense by contravening sections 4 and 5 of the Act.

Should public interest or benefit be available as a defense for Sam’s conduct?            

The Australian Legislative system is increasingly recognizing the need to enact laws that are aimed at protecting the Journalist Privilege as outlined in the Evidence Act.[17] However, the presumption in favor of the Journalist’s privilege can be reversed by the Courts. This reversal is necessary where there is reason to compel a journalist to reveal his or her informant in order to ensure a substantive furtherance of the public’s interest.[18]Journalists need to protect the confidentiality of their informants in order to protect their professional reputation. Such a reputation is necessary as it helps to ensure that they build trustworthy relationships with their sources to ensure a continuous flow of information in the future.

Elements of Public Interest as a Defense in Defamation

Where a person publishes defamatory content with the intention of furthering the public interest, then that person can rely on public interest as a defense in civil claims brought against him or her. For the defense to be successful, it should have the following elements;

  • The communication must be a matter that falls within the context of public interest. As such, the subject matter of the communication should one that attracts the public’s attention as it touches on their welfare and wellbeing.[19]
  • The public interest defense is only applicable if the journalist made diligent efforts to verify the contents of the communication.[20] Such efforts should be aimed at determining the reliability of the source of the information, as well as seeking the plaintiff’s side of the story.[21]
  • The public interest defense is also applicable if the courts can determine the publication to be a fair comment in the form of an expression of opinion as well as a statement of fact(s).[22]However, such an opinion should be honesty and not maliciously motivated.

Would Sam’s conduct satisfy these elements?

In this case, Sam made a reckless publication with absolute disregard to proving the truthfulness or falsity of the assertions and allegations of impropriety. The allegations or assertions made, although in the public interest, should be true and provable. Sam fails to take any reasonable steps to verify the accuracy of the information he published. He does not believe in the truthfulness of the information hence his actions fails to comply with Reynolds’ test as was explained in Lange v Australian Broadcast Corp.[23]one can regard Sam’s actions as baseless attacks on Larry Leisure-Suit’s reputation, hence defamatory in nature. He fails to find any information with allegations of impropriety regards the contract for the supply of coffee at the annual Department of Community Wellbeing fun run. It is clear that he made a consideration to make a submission under the Freedom of Information Act 1982 (Cth) to the Department of Community Wellbeing for access to documents relating to the contract. However, he retracts from such an idea for fear that someone might report the story before he does. In addition, the manner in which he published the information seems to be, in my opinion, an assertion of verifiable facts rather than an honest opinion. As such, the defense of public interest, although available, will be difficult to prove in light of the facts in this case.

Which of the following entities referred to in the scenario is not bound by the Privacy Act 1988 (Cth)? (Select one) (1 mark)

  1. Clandestine

If Sam had have submitted an application for documents relying on the Freedom of Information Act 1982 (Cth) which of the following is not a valid reason for the Department of Community Wellbeing to decide that access is exempt? (Select one) (1 mark)

  1. Disclosure of the documents may result in unnecessary and misinformed public debate about the ongoing tenure of Secretary of the Department of Community Wellbeing.

If Larry were to bring legal action for defamation against Sam, which of the following statements is not correct regarding the law relating to the disclosure of sources? (Select one) (1 mark)

  1. During the trial, Sam could use as a defense to contempt of court his ethical obligations under journalists’ codes of ethics if he refuses to reveal Tom as his source.

Bibliography

  1. Articles/ Books/ Reports

Cameron, Julia. “Online publishing and the law of defamation in Australia.” (2008)

Ingham, Lorraine. “Australian Shield Laws for Journalists: A Comparison with New Zealand, the United Kingdom and the United States.” PhD diss., Dissertation for SBS/ANU internship. Retrieved September 25, 2014, from http://www.cla.asn.au/Article/ShieldLaws, 2007

Jobb, Dean. “Responsible Communication on Matters of Public Interest: A New Defense Updates Canada’s Defamation Laws.” J. Int’l Media &Ent. L. 3 (2010): 195

Kenyon, Andrew T. “Lange and Reynolds qualified privilege: Australian and English defamation law and practice.” Melb. UL Rev. 28 (2004): 406

  1. Cases

Dow Jones & Co Inc. v Gutnick, (2002) H.C.A. 56, 210 C.L.R. 575

Lange v Australian Broadcast. Corp. (1997), 145 ALR 96 (HC), at 115, 118

  1. Legislation

Defamation Act 2005

Evidence Act 2011 (Cth)

Listening Devices Act 1992 (Cth)

[1] Cameron, Julia. “Online publishing and the law of defamation in Australia.” (2008).

[2]Dow Jones & Co Inc. v Gutnick, (2002) H.C.A. 56, 210 C.L.R. 575.

[3] Kenyon, Andrew T. “Lange and Reynolds qualified privilege: Australian and English defamation law and practice.” Melb. UL Rev. 28 (2004): 406.

[4]Defamation Act 2005, s 25.

[5]Supra note 3.

[6]See, Defamation Act 2005 s 25;Civil Law (Wrongs) Amendment Act 2006, s 135; Defamation Act 2005 (SA), s 23; Defamation Act 2005, s 22 (NT).

[7] Defamation Act 2005 s 30: Civil Law (Wrongs) Amendment Act 2006, s 139B; Defamation Act 2005 (SA), s 29; Defamation Act 2005, s 28 (NT).

[8]Defamation Act 2005 s 30:Civil Law (Wrongs) Amendment Act 2006, s 139A; Defamation Act 2005 (SA), s 28; Defamation Act 2005, s 27 (NT).

[9] Defamation Act 2005, s. 27; Defamation Act 2005, Civil Law (wrongs) Amendment Act 2006, s 137: Defamation Act 2005, s 24 (NT); Defamation Act 2005, s 25 (SA).

[10] Evidence Act 2011 (Cth) s 126J.

[11] Evidence Act 2011 (Cth)s 126K

[12]Evidence Act (Cth) s 126A (b).

[13]Ibid.

[14] Listening Devices Act 1992 (Cth) s 4(1)(b).

[15] Listening Devices Act 1992 (Cth) s 4(3)(b)(ii).

[16] Listening Devices Act 1992 (Cth) s 5(1)(b).

[17]Evidence Act 2011 (Cth) s 126J; Evidence Act 2011 (Cth) s 126K.

[18] Ingham, Lorraine. “Australian Shield Laws for Journalists: A Comparison with New Zealand, the United Kingdom and the United States.” PhD diss., Dissertation for SBS/ANU internship.Retrieved September 25, 2014, from http://www.cla.asn.au/Article/ShieldLaws, 2007.

[19]Jobb, Dean. “Responsible Communication on Matters of Public Interest: A New Defense Updates Canada’s Defamation Laws.” J. Int’l Media &Ent. L. 3 (2010): 195.

[20] Ibid.

[21] Ibid.

[22]

[23]Lange v Australian Broadcast.Corp. (1997), 145 ALR 96 (HC), at 115, 118.