1/06/2015Copyright, Dan Svantesson Law 105 Communication and the law

1/06/2015Copyright, Dan Svantesson Confidentiality: Prevents media from accessing information Protects media’s sources

1/06/2015Copyright, Dan Svantesson Confidentiality: There are three elements of an action to restrain a publication of confidential information: 1) The information must be of confidential nature; 2) The circumstances of the communication must have imposed confidentiality; and 3) There must be an actual (threat of) unauthorised use of the confidential information.

1/06/2015Copyright, Dan Svantesson Confidentiality: Disclosure to a limited group of people does not necessarily deprive the information of its confidential nature.

1/06/2015Copyright, Dan Svantesson Confidentiality: Disclosure to a limited group of people does not necessarily deprive the information of its confidential nature. TEST: Is the information in the public domain?

1/06/2015Copyright, Dan Svantesson Confidentiality: If the circumstances are such that any reasonable person standing in the shoes of the recipient of the information would have realised on reasonable grounds that the information was given to him or her in confidence, that is sufficient to impose upon the recipient an obligation of confidence

1/06/2015Copyright, Dan Svantesson Confidentiality: People must accept the risks inherent in their chosen way of communication. REMEMBER: s are as private as a postcard!!!!

1/06/2015Copyright, Dan Svantesson Confidentiality: Do not publish information that it is obvious that was meant to be confidential, and it is “inconceivable” that the person who first communicated the information would allow a third party use of it.

1/06/2015Copyright, Dan Svantesson Confidentiality: actual (threat of) unauthorised use of the confidential information

1/06/2015Copyright, Dan Svantesson Confidentiality: 1) The information was already in the public domain

1/06/2015Copyright, Dan Svantesson Confidentiality: 1) The information was already in the public domain 2) Justified disclosure

1/06/2015Copyright, Dan Svantesson Confidentiality: “just cause or excuse” i.e. the public interest in publication is greater than the public interest in maintaining the confidence.

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest”

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest” Media not always the best option

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest” Media not always the best option Mere allegations not always enough to justify disclosure

1/06/2015Copyright, Dan Svantesson Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest” Media not always the best option Mere allegations not always enough to justify disclosure Your source’s motives

1/06/2015Copyright, Dan Svantesson Confidentiality: 1) The information was already in the public domain 2) Justified disclosure 3) Whistleblower protection

1/06/2015Copyright, Dan Svantesson Confidentiality: Remedies: Interlocutory injunction (Lennon case)

1/06/2015Copyright, Dan Svantesson Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction

1/06/2015Copyright, Dan Svantesson Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction Account of profits

1/06/2015Copyright, Dan Svantesson Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction Account of profits Damages

1/06/2015Copyright, Dan Svantesson Confidentiality: “Professional confidential relationship privilege“: Balances the harm done to the confider, if information is disclosed, and the desirability of the evidence being given Evidence Act 1995 (NSW) s.126(a-f)

1/06/2015Copyright, Dan Svantesson Privacy: “The interest of a person in sheltering his or her life from unwanted interference or public scrutiny.”

1/06/2015Copyright, Dan Svantesson Privacy: ICCPR, Article 17: “ 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”

1/06/2015Copyright, Dan Svantesson Privacy: Defamation Confidentiality Trespass Nuisance Data protection

1/06/2015Copyright, Dan Svantesson Privacy (Trespass): “unlawful interference with land which is in the possession of another”

1/06/2015Copyright, Dan Svantesson Privacy (Trespass): Entering land without consent Remaining on land after consent is withdrawn Leaving objects on land Normally does not amount to trespass: Surveillance from other premises Surveillance from the air

1/06/2015Copyright, Dan Svantesson Privacy (Trespass - Remedies): Damages Injunction (trespass) Injunction (subsequent publication)

1/06/2015Copyright, Dan Svantesson Injunction (subsequent publication): publication must be unconscionable publication would lead to irreparable harm to the plaintiff protection of injunction outweighs the need for freedom of speech

1/06/2015Copyright, Dan Svantesson Privacy (Trespass - Remedies): Damages Injunction (trespass) Injunction (subsequent publication) Self-help Criminal sanctions

1/06/2015Copyright, Dan Svantesson Privacy (Nuisance): PRIVATE and public Unlawful interference with enjoyment of land For example, noise, fumes and smells. Trivial interference is insufficient Actual damages must be shown Defendant must have an interest in the land in question

1/06/2015Copyright, Dan Svantesson Privacy (Nuisance): Telephone calls Surveillance from other premises or the air

1/06/2015Copyright, Dan Svantesson Privacy (Nuisance - Remedies): Damages Injunction (nuisance) Injunction (subsequent publication) Self-help

1/06/2015Copyright, Dan Svantesson Scenario : “A lies to B in saying that their common friend, C, knowingly sells rotten apples.”

1/06/2015Copyright, Dan Svantesson Legal Areas: Defamation Injurious falsehood

1/06/2015Copyright, Dan Svantesson The cause of action: Three steps 1) The matter complained of must be ‘defamatory’; 2) The plaintiff must be identified as the one that the defamatory material relates to; 3) The defamatory material must have been ‘published’.

1/06/2015Copyright, Dan Svantesson Defamatory?!! Common law (i.e. ACT, NSW, SA, Vic & WA): 1) exposing the plaintiff to: hatred, contempt or ridicule. 2) cause the plaintiff to be shunned or avoided 3) lower the plaintiff in the estimate of others (impute blame on the plaintiff)

1/06/2015Copyright, Dan Svantesson Is the plaintiff identified? MAIN RULE: “of and concerning the plaintiff”

1/06/2015Copyright, Dan Svantesson Is the plaintiff identified? Plaintiff not named: “Are [the words] such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he [or she] was the person referred to?”

1/06/2015Copyright, Dan Svantesson Publication: The publication must be made to a person other than the defamed The person to whom the material is published must understand it to be defamatory It is where and when the defamatory material enters the third person’s mind that the defamation occurs.

1/06/2015Copyright, Dan Svantesson Publication: All forms of communication can be used to defame somebody Publication to one single individual, other than the plaintiff, is sufficient for an action in defamation.

1/06/2015Copyright, Dan Svantesson “Justification” or truth - defence Truth alone is a complete defence in common law. (Vic., SA, WA & NT) Truth is a defence if the publication was for “public benefit” (Qld, Tas & ACT) Truth is a defence if the publication related to a matter of “public interest” or was published under “qualified privilege”. (NSW)

1/06/2015Copyright, Dan Svantesson Absolute Privilege: Communication between spouses – exists in common law, but not expressly in Qld & Tas (undecided)

1/06/2015Copyright, Dan Svantesson Qualified privilege: “A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. (This reciprocity is essential.)”

1/06/2015Copyright, Dan Svantesson (Fair) Comment: Comment by the defendant (s. 32) 32(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant. 32(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant.

1/06/2015Copyright, Dan Svantesson (Fair) Comment: S. 30 – “based upon proper material for comment” S. 31 – “public interest”

1/06/2015Copyright, Dan Svantesson Triviality: Triviality – the publication is such that the person defamed is not likely to suffer any harm. must relate to the circumstances of the publication rather than the defamed person.

1/06/2015Copyright, Dan Svantesson Remedies: Damages Injunctions

1/06/2015Copyright, Dan Svantesson Reading instructions: AML pages 254 – 266 Confidentiality (if you have not done it already) Refresh you memory of defamation (if you feel unsure about that area)