Defamation Law Essay, Research Paper
Communication Law and Ethics Essay
Law Question: Week 4: Who can be sued in a defamation case? Outline possible defences, citing case studies.
The penguin Modern English dictionary defines defamation as a false report made maliciously to injure. Other definitions of defamation include slander and calumny.
The basic idea of defamation is simple. It is an attempt to balance the private right to protect one’s reputation with the public right to freedom of speech. Defamation allows people to sue those who say or publish false and malicious comments.
There are two types of defamation, the first being oral defamation and the second being published defamation. Oral defamation, also known as slander involves the comments made verbally that could cause damage to a person’s reputation, for example comments or stories told at a meeting or at a party.
Published defamation involves written material being distributed which adversely affects someone’s reputation. This form of defamation is also called libel.
Anything that injures a person’s reputation can be defamatory. If a comment brings a person into contempt, disrepute, or ridicule, it is likely to be defamatory.
The law of defamation involves the statements or claims by one person that adversely effects the reputation of someone else. (Armstrong, Lindsay and Watterson (1995) Media Law in Australia, 3rd edition, Melbourne: Oxford University Press.)
Defamation law carries heavy implications for what is published an example of this would be that of Sir Robert Askin who was premier of the state of New South Wales for a decade beginning in 1965. It was widely rumoured that he was involved with corrupt police and organised crime, collecting vast amounts of money through bribes. But this was never dealt with because media outlets knew he would sue for defamation. Immediately after Askin died in 1981, the National Times ran a front-page story entitled” Askin fiend to organised crime”.
There are a few complexities with Defamation Law and it can be argued that these complexities change the way defamation law is regarded. It is seen at times as a not a way of protecting people but as a way to inhibit free speech.
Cost is a major factor in defamation law, if you are sued for defamation, you could end up paying tens of thousands of dollars in legal fees, even if you win. If you lose you could face massive pay out on top of the fees.
The large costs, due especially to the cost of legal advice, mean that most people never sue for defamation. If you don’t have much money, you don’t have much chance against a rich opponent, whether you are suing them or they are suing you. Cases can go on for years. Judgements can be appealed. The cost becomes enormous. Only those with deep pockets can pursue such cases to the end.
An example of this would be in 1989, Tony Katsigiannis , as president of the free speech committee, wrote a letter published in the Melbourne age and the Newcastle herald discussing ownership of the media. Among other things, he said of a review of the broadcasting Act “that its main concern will be to save the necks of the government’s rich mates.” Although he mentioned no names, Michael Hutchinson, a public servant who headed the review of the broadcasting act, sued him and the newspaper owners for defamation. Hutchinson sued on the basis of imputations in the letter, which can be judged defamatory even when not intended by the writer. Hutchinson said he wouldn’t accept just an apology; he wanted a damages payment and his legal costs covered, Katsigiannis received $20, 000 worth of legal support form his friends, but after three years of struggle he agreed to a settlement in which he apologised but received Hutchinson received no money. These issues often lead to defamation law being only used by the rich and powerful to deter criticism and is seldom used to help ordinary people whose reputations are attacked unfairly.
People say and write defamatory things all the time, but only a few are threatened with defamation. Sometimes gross libels pass unchallenged while comparatively harmless comments lead to major court actions. This unpredictability has a hindering effect on free speech. Writers, worried about defamation, cut out anything that might offend. Publishers, knowing how much it can cost to lose a case, have lawyers go through articles to cut out anything that might lead to a legal action.
Defamation law is so complex that most writers prefer to be safe then sorry. Judges and lawyers are the only people who truly understand how the law will be applied therefore those who desire to defend a defamation case without lawyers are deterred by the complexities.
The slowness of defamation law also plays a major part in deterring people to go to court in order to defend themselves. Many defamation cases are launched years after a statement was made or published. Cases can take many years to resolve.
Just about every single person can be sued for defamation; defamatory comments are made every single day. Only rarely does someone use the law of defamation against such statements. Only a living person can be defamed, however relatives of the deceased may be able to sue if the defamatory statement includes them as well as the deceased.
Defamation law requires that the person suing must be able to prove that he or she was the person defamed by the statement in question. (Armstrong, Lindsay and Watterson (1995) Media Law in Australia, 3rd edition, Melbourne: Oxford University Press). The definition of a person in this context also includes companies and other legal entities. This inclusion allows the extent to which powerful companies can sue for defamation because they are restricted to statements regarding their business reputation and not personal reputation.
In a defamation case the plaintiff must prove that the statement was defamatory, that the statement referred to the plaintiff, and that the statement to be seen by a third party was published by the defendant.
Australian law provides three main defences to authors that have written, spoken or published materials: truth, fair comment, and privilege. Truth is a complete defence. Australian jurisdiction protects ‘fair comment’ on issues of public interest, but in order for this to be a valid defence, the comment must be based on provable facts, concern a matter of public interest, and be made without malice. Innocent dissemination is a defence for those who are not authors, publishers, or printers.
When using truth, as a defence there must be evidence which should all be admissible that the statement made was the truth. Defamation law is one of the few civil actions that place the onus on the defendant rather then the plaintiff. (Pearson, M. (1996) The journalist’s guide to Media Law. Sydney: Allen & Unwin).
If the statement can be proven as the truth any imputations that may arise from that statement must also be proven as being true. The law in New South Wales requires that including the above mentioned, an author must also prove that the materials published were in the public interest.
Publishing the truth is seen as a justified defence even if it tarnishes the reputation of that person because distributing that truth only allows for more of the public to be aware of it.
The defence of fair comment can be used for opinions, reviews and can come in the form of editorials to theatre reviews. It is obvious with fair comment that the
Statement in question is the view of an individual. However in order for this to qualify as a defence the defendant must prove that their opinion was based on provable facts, it must also be honest opinion and once again a matter of public interest. (Pearson, M. (1996) The journalist’s guide to Media Law. Sydney: Allen & Unwin).
A demonstration of this defence would be in the case of Blue Angel Restaurant v. John Fairfax and Sons Ltd (1989) in which statements were made by food critic Leo Schofield in a review headed ” High drama where lobsters have no privacy” in the Sydney Morning Herald. In this review Schofield made comments on the way the lobsters were handled and cooked at the restaurant and spoke about the way in which other seafood was handled.
The Blue Angel Restaurant sued on grounds that Schofield’s review led to imputations that the restaurateur was ‘cruel and inhumane’ in the way the lobsters were killed and the way in which they were cooked was also not value for money.
The Sydney Morning Herald attempted to use the ‘fair comment’ rule as a defence but weren’t successful. One of the requirements the Schofield and Sydney Morning Herald failed to meet was to prove that the comments made were in actual fact the truth. The Blue Angel Restaurant was awarded $100 000 in damages.
The defence of privilege also known as qualified privilege allows for anyone in a situation that requires them to give defamatory comments about others regardless of if it is true and not be accused of defamation. This defence warrants a duty-interest relationship in which the provider of the information has a duty to provide it and the receiver has a large interest in receiving that information. This defence is particularly useful to those people who make or provide to others information that may or may not be proven to be the truth. This includes teachers who in their professional sphere are required to make or give comments about students that could be damaging but not necessarily the truth.
This defence is very rarely available to mass media because it is tailored to provide protection for minorities and special interest groups.
The law in NSW requires that in order to claim the qualified privilege defence the defendant must be able to prove that they behaved ‘reasonably in the circumstances’ (Pearson, M. (1996) The journalist’s guide to Media Law. Sydney: Allen & Unwin).
An example of this would be the 1986 case of Austin v. Mirror Newspapers , in which Ron Casey, a rugby league commentator wrote a column criticising the trainer of a team. The trainer was described as a ‘fitness fanatic’ and examples of what was required of the players in terms of fitness regimes were given. The trainer sued and the newspaper used qualified privilege as a defence. The Privy Council found that the defendant’s conduct was not ‘reasonable in the circumstances’ because Casey had not tried hard enough to check that all statements made were true.
The law in Queensland and Tasmania excuses all publications made in ‘good faith’ and in the interest of the public and for the benefit of the public. Instead of showing that their actions were ‘reasonable in the circumstances’, as is the case in NSW law the publisher only has to prove that it acted in good faith.
Other defences which are available include Absolute Privilege which allows those speaking in court and parliament, Innocent Publication for those who unknowingly distribute publications, Apology which is available in most states but must negate damages and consent which allows for the plaintiff to show that the material published was authorised by the defendant.
The law of defamation provides a way of protecting one’s reputation from unfair comments but at the same time also hinders one’s ability to free speech.
Defamatory comments are made by just about everybody yet many of these go unnoticed and others are taken to court. There are many defences available for defamation however only a few can really be proven and even then they have many requirements that must be met.
h Armstrong, Lindsay and Watterson (1995) Media Law in Australia. 3RD Edition, Melbourne: Oxford University Press.
h Pearson, M (1996) The Journalist’s guide to Media Law. Sydney: Allen & Unwin