Foundations of Australian Law Fourth Edition Copyright © 2013 Tilde Publishing and Distribution Chapter 7 Defamation, nuisance & trespass

Chapter overview This chapter looks at the concepts of  defamation  nuisance  trespass

Defamation Legal principle: Defamation can only occur when statements made by the defendant about the plaintiff are untrue. If the statements made by the defendant are true, then defamation has not taken place.

Defamation concept summary Figure 7.1

Defamation Two categories  Libel -permanent form in writing, illustrations, recordings or broadcasts  Slander -non-permanent form through spoken words

Elements of defamation Statement made by defendant against plaintiff is defamatory Third party would interpret statement as referring to plaintiff Statement identifies the plaintiff The statement is published to a third party

Defamatory imputations When a person attributes something which is:  Dishonest  Wrongful  Fault or  Misconduct

Settling disputes without litigation Plaintiff and defendant have opportunity to resolve dispute without litigation Offer of amends

Offer of Amends – Sections 12-19: Figure 7.2

Restrictions on bringing action of defamation Corporation defamed cannot bring action unless they belong to an excluded category  non-profit organisation  corporation that is not public body and has < 10 employees Time restriction – one year of date of publication

Recognised defences to an action of defamation Consent Justification Honest opinion Absolute privilege Qualified privilege Fair comment

Remedies for defamation Damages are awarded to the injured party Juries (except in NSW) have task of awarding damages

Internet implications Can be difficult to prove the identity of actual source These may be liable for defamatory material published on the internet  author  information system provider  ISP  any other infrastructure providers

Nuisance A civil wrong committed against a plaintiff’s right of use and enjoyment of his/her land Two areas  private nuisance -civil wrong that is not a crime -indirect interference  public nuisance -criminal act, unreasonable, substantial

Nuisance Nuisance concept summary: Figure 7.3

Private nuisance Two types of defendant  directly responsible for nuisance  person who occupied land from which nuisance arose

Defences for private nuisance Plaintiff had consented to the nuisance Statutory authority caused them to take reasonable precautions

Remedies for private nuisance Normally an injunction stopping the defendant from causing the nuisance again Damages awarded if loss has occurred

Public nuisance Related to criminal acts Plaintiff must prove nuisance  was unreasonable and substantial  affected reasonable comfort of life  was greater to themselves than suffered by the general public Remedies including injunctions and special damages

Trespass Trespass concept summary: Figure 7.4

Trespass Trespass against the person  assault, battery, false imprisonment Trespass against land  squatting is intentional trespass Trespass against chattels  property other than land

Chapter review In this chapter you have looked at  negligence  defamation  nuisance  trespass