ACC213 Media Law and Ethics Topic 8 Week 8 Defamation Defences

Defamation Defences Truth - justification Absolute privilege Fair report Qualified privilege Honest opinion - fair comment Innocent dissemination Triviality Offer of amends Defamation defences. However it is lawful to publish defamatory material if you can rely on a recognised defense or legal justification for publishing the material. Defamation Defences Justification (truth) Absolute privilege Fair reporting Qualified privilege Honest opinion/Fair comment Innocent dissemination Triviality

Proceedings within year Damages cap $366,000 Proceedings within year Jury - judge - except SA - ACT - NT no juries Juries decide damages Juries decide publication defamatory Juries decide if defense established Damages and Costs There is a new cap on damages of $250,000 which can be indexed annually and the amount exceeded if the court is satisfied the circumstances warrant an award of aggravated damage. Limitation of actions Proceedings can only be started within one year (rather than six in Victoria) after the publication of the defamatory material except by order of the court in certain circumstances. Judges and juries Either a plaintiff of defendant can choose whether to have a jury or judge alone hear the case, except in South Australia, ACT and the NT where there are no juries. Juries will decide on damages, juries will only decide if the publication is defamatory and if any defense raised has been established.

Who Can Sue? Any living person or legal entity Corporation can sue if under 10 employees A government can’t Who Can Sue? Who can sue? Any living person or legal entity (a corporation) can sue, but not a government.

Who Can Not Sue? Companies The dead Who can not sue? The dead – unless in defaming the dead person, by inference you defame the living. Companies cannot sue for defamation. • Companies cannot sue for defamation unless they are a private body and are either a not-for-profit organisation or employ fewer than 10 people. • This does not prevent an individual associated with a company from suing for The dead cannot sue for defamation. • Except for Tasmania, neither the dead nor their representatives can sue for defamation – a claim for defamation dies with the plaintiff. In Tasmania, a claim can be made by an estate on behalf of a deceased for material published prior to death.

Things To Consider When Looking For A Defence What are the defamatory allegations and imputations List them What are the possible defences? Any legal justification for publishing the material? 

Defamation Defences Have Two categories – 1. based on the material complained of being true (Truth and Honest Opinion) 2. those that can succeed even if the material isn’t true (Absolute Privilege, Fair Report and Qualified Privilege, Innocent Dissemination, Triviality).

Burden of proof On the defendants (i.e. you, the journalist, editor/publisher/producer/Tweeter) – NOT the ‘plaintiff’ (the person claiming they have been defamed). 

There is ONE stand alone defence  Truth (Sections 25 and 26) prove that the material published is “substantially true”.   -- if you reveal something about someone that is true, even if it was not previously known, you are not lowering their reputation but merely correcting it. 

PROVING TRUTH standard of evidence needed to prove something is “substantially true” is high defendants need witnesses and documents to back up their case This is why RESEARCH SKILLS matter.

Common Law Defences NB: provided for in statute Absolute privilege For those taking part in the proceedings of federal and state parliaments and in the courts (Section 27).   Protection for material contained in official parliamentary and court documents (Section 28). Fair report Public interest in courts, parliaments and in other public forums, and it  gives journalists the right to report on these proceedings (Section 29).  Journalists are allowed to report on defamatory allegations made in these forums without fear of being sued, as long as their reports are fair and accurate.   Includes other meetings eg proceedings of “a sport or recreation association”, a “trade association”, a “public meeting…. of shareholders” or a “public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest”.  

Qualified privilege s 30 Allows media to publish things that may be defamatory even if they can’t prove them because they feel that the matters should be brought to public attention.  Must act “reasonably in the circumstances” . Act sets out a detailed list of things that they may need to do to be successful in the defence.  the extent to which the matter is of public interest and whether it needed to be published urgently   the extent to which the matter relates to the performance of public functions or activities of the plaintiff how serious the defamatory imputation is the extent to which suspicion, allegation and proven fact is distinguished  the integrity of the sources of the information whether there was a reasonable attempt to get the plaintiff’s side of the story and publish this response the steps taken to verify the information.

Political Qualified Privilege Lange v. Australian Broadcasting Corporation -- the Australian constitution contains an “implied guarantee” that people in Australia should be free to discuss matters of government and politics, without fear of being sued.  The Lange Defence

Honest opinion s 31 Opinion, comment, reviews and criticism. Material or events that the comments or opinions are based on must be true.  To succeed as a defence, the material published needs to be: an expression of opinion rather than a statement of fact, it must relate to a matter of public interest, the opinion must be based on “proper material” – either true facts or matters protected by qualified or absolute privilege.  This “proper material” must be contained in the publication, so that people can understand the circumstances which the comment is based on.  the opinion must be “honestly held”.

Innocent dissemination s  32  Protection to people who sell or distribute defamatory material but who couldn’t be expected to know that it was defamatory, e.g newsagents, libraries, BUT NOT ISPs, since Trkulija Case http://www.theage.com.au/technology/technology-news/google-search-results-defamed-melbourne-man-20121031-28kkl.html In previous case against Yahoo!, Trkulja was awarded $225,000 damages. http://www.crikey.com.au/2012/11/01/stilgherrian-google-defames-us-all-but-should-we-sue/?wpmp_switcher=mobile

Triviality s 33 relates to matters where no real damage has been done. publications which are intended to be humorous or satirical succeeds if proved no-one would take the material seriously & plaintiff suffered no harm to reputation.

Pell v Deveny – Triviality Tested Comedian Catherine Deveny tweeted a photo which Pell’s lawyers said “conveys … the false and seriously defamatory imputations that Cardinal Pell is associated with the sexual abuse of young boys”.

Pell’s Lawyers in 2012 case wrote … “Under Australian law, Twitter is jointly and severally liable with the account holder for the defamation. Also, under Australia law, damage to Cardinal Pell’s reputation caused by the post is presumed. In the circumstances, we demand that Twitter immediately removes the Publication. Should it fail to do so, we will hold it liable for the damage and harm caused to Cardinal Pell’s reputation.”

What did Deveny Do? Deveny took down the tweet Made an apology on her blog legal letters did not demand that she do either They demanded Twitter remove the tweets http://www.crikey.com.au/2012/05/08/devamation-george-pell-pursues-legal-action-over-a-deveny-tweet/

Offer of amends ss 12-20. Without accepting liability, publisher can make an “offer to make amends” within 28 days of written complaint being made about the material which details the plaintiff’s concerns

Offer of Amends Conditions it must be in writing it must contain an offer to publish a correction it must contain an offer to pay any reasonable expenses incurred by the plaintiff (for instance the costs of legal advice) it may also contain an offer of an apology and an offer to pay compensation for economic damages suffered if this is appropriate ‘Offer of amends’ can be a complete defence – even if it refused by the plaintiff - as long as it is made “as soon as practicable” after the publisher became aware of the alleged defamation and was “reasonable in all the circumstances” – Takes into account prominence and speed of the correction or apology extent to which it reached the same audience or readership as the initial defamation.

Chris Kenny v ABC http://www.theaustralian.com.au/business/media/abc-capitulates-to-chris-kenny/story-fna045gd-1226942218238 Chaser broadcasted offensive skit featuring The Australian’s columnist Chris Kenny ABC broadcasted on-air apology as part of a formal defamation settlement that included paying all legal costs and some damages. ABC and The Chaser team, backed by ABC internal review that found skit met editorial standards for satire Apology aired in prime time at about 9pm, before the Jonah From Tonga show [June 4, 2014].

The Impact of Social Media http://www.theaustralian.com.au/opinion/social-media-abuse-pushes-defamation-laws-to-the-limit/news-story/1cfd1aa4d08add43a5f141b9775a132e

Next week Social Media – will contain more on defamation Assignment 2 due September 27 11.59 pm You should be well into the planning stage now