2/06/2015Copyright, Dan Svantesson Law 105 Communication and the law

2/06/2015Copyright, Dan Svantesson Privacy: “The interest of a person in sheltering his or her life from unwanted interference or public scrutiny.”

2/06/2015Copyright, 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.”

2/06/2015Copyright, Dan Svantesson Privacy: Defamation Confidentiality Trespass Nuisance Data protection

2/06/2015Copyright, Dan Svantesson Privacy (Trespass): “unlawful interference with land which is in the possession of another”

2/06/2015Copyright, Dan Svantesson Privacy (Trespass): Entering land without consent Remaining on land after consent is withdrawn Leaving objects on land Normally does not amount to trespass: Surveillance from other premises Surveillance from the air

2/06/2015Copyright, Dan Svantesson Privacy (Trespass - Remedies): Damages Injunction (trespass) Injunction (subsequent publication)

2/06/2015Copyright, 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

2/06/2015Copyright, Dan Svantesson Privacy (Trespass - Remedies): Damages Injunction (trespass) Injunction (subsequent publication) Self-help Criminal sanctions

2/06/2015Copyright, 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

2/06/2015Copyright, Dan Svantesson Privacy (Nuisance): Telephone calls Surveillance from other premises or the air

2/06/2015Copyright, Dan Svantesson Privacy (Nuisance - Remedies): Damages Injunction (nuisance) Injunction (subsequent publication) Self-help

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): Privacy Act 1988 (Cth) Based on OECD’s “Guidelines on the Protection of Privacy and Transborder Flows of Personal Data” 1980 Amended in December 2001 to include also the private sector

2/06/2015Copyright, Dan Svantesson “Personal information”: “personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP1: Collection - describes what an organisation should do when collecting your personal information.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP2: Use and Disclosure - outlines how organisations can use and disclose your personal information.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP3: Data Quality & NPP4: Data Security - set the standards that organisations must meet for the accuracy, currency, completeness and security of your personal information.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP5: Openness - requires organisations to be open about how they handle your personal information.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP6: Access & Correction - gives you a general right of access to your own personal information, and the right to have that information corrected, if it is inaccurate, incomplete or out of date.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP7: Identifiers - says that generally, Commonwealth government identifiers (such as the Medicare number or the Veterans Affairs number) can only be used for the purposes for which they were issued.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP8: Anonymity - where possible, requires organisations to provide the opportunity for you to interact with them without identifying yourself.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP9: Transborder Data Flows - outlines privacy protections that apply to the transfer of your personal information out of Australia.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): NPP10: Sensitive Information - requires your consent when an organisation collects sensitive information about you such as health information, or information about your racial or ethnic background, or criminal record. Sensitive information is a subset of personal information and special protection applies to this information.

2/06/2015Copyright, Dan Svantesson Privacy (Data protection): Not covered by the Act: Small businesses (annual turnover of $3 million or less); Employee records held by current or former employers; Acts and practices of the media in the course of journalism.

2/06/2015Copyright, Dan Svantesson Consent: Identifiable - Expressed or Implied Informed – the degree depends on the circumstances Free - a distinction has been made between situations where the person giving the consent has a real alternative to doing so, and situations where the person giving the consent has no other options.

2/06/2015Copyright, Dan Svantesson Making a complaint: Make compliant to the offender. Make a complaint to the Privacy Commissioner. Conciliation. (ask them to improve their practise, ask for an apology, get economic compensation) Close the file OR make determination appeal to the Federal Court or the Federal Magistrates Court

2/06/2015Copyright, Dan Svantesson Freedom of information: Freedom of information Act 1982 (Cth) Mirrored in state legislation regulates access to governmental information it is irrelevant who is seeking access

2/06/2015Copyright, Dan Svantesson Access request: in writing identify requested document return address in Australia sent to appropriate agency or Minister pay fee

2/06/2015Copyright, Dan Svantesson Refusal of access: Agency based exemptions (certain agencies, like ASIO, are exempt) Specific exemptions (Long list – refer to chapter 8 of AML)

2/06/2015Copyright, Dan Svantesson Review of refusal: Internal review Administrative Appeals Tribunal

2/06/2015Copyright, Dan Svantesson Examples of exam questions: The term ‘criminal law’ can: (A) be seen as irrelevant for Australia, since Australia does not have any criminal laws (B) be contrasted to ‘civil law’ (C) refer to the laws that regulate all activities in Australian prisons (D) include legal areas such as torts and contracts

2/06/2015Copyright, Dan Svantesson Examples of exam questions: The term ‘criminal law’ can: (A) be seen as irrelevant for Australia, since Australia does not have any criminal laws (B) be contrasted to ‘civil law’ (C) refer to the laws that regulate all activities in Australian prisons (D) include legal areas such as torts and contracts

2/06/2015Copyright, Dan Svantesson Examples of exam questions: Which choice of law rule is applied by Australian courts in a defamation dispute? (A) The law of the place where the contract was concluded (B) The law of the place where the oldest party to the dispute resides (C) The law of France (D) The law of the place of wrong

2/06/2015Copyright, Dan Svantesson Examples of exam questions: Which choice of law rule is applied by Australian courts in a defamation dispute? (A) The law of the place where the contract was concluded (B) The law of the place where the oldest party to the dispute resides (C) The law of France (D) The law of the place of wrong

2/06/2015Copyright, Dan Svantesson Examples of exam questions: Which of the following forms of communication would be classed as “slander”? (A) a newspaper article (B) a radio broadcast (C) smoke signals (D) a verbal conversation

2/06/2015Copyright, Dan Svantesson Examples of exam questions: Which of the following forms of communication would be classed as “slander”? (A) a newspaper article (B) a radio broadcast (C) smoke signals (D) a verbal conversation

2/06/2015Copyright, Dan Svantesson Examples of exam questions: Briefly describe two negative consequences that would be the result if Australian courts claims jurisdiction over cases where an Australian resident has been defamed by Internet publications, irrespective of whether any person in Australia has actually read them, or only a comparatively small number of the readers are located in Australia. (2p)

2/06/2015Copyright, Dan Svantesson Examples of exam questions: ANSWER: that the Court considered that all material published on the Internet is subject to the laws of every jurisdiction from which the information can be accessed; that the Court would have ignored the fact that the majority of the publications in question were downloaded or read by people elsewhere.

2/06/2015Copyright, Dan Svantesson Examples of exam questions: Shortly describe the meaning of “false” innuendo. (1p) an alternative meaning that can be reasonably inferred from the text itself

2/06/2015Copyright, Dan Svantesson Examples of exam questions: What three factors must be shown for the defence of innocent dissemination to apply? (3p)

2/06/2015Copyright, Dan Svantesson Examples of exam questions: Defendant must show: - that he/she/it did not know the matter was defamatory; - that the ignorance was not due to negligence; and - that he/she/it had no ground to suppose that the publication was likely to contain defamatory matters.

2/06/2015Copyright, Dan Svantesson Scenario : “A lies to B in saying that their common friend, C, knowingly sells rotten apples.”

2/06/2015Copyright, Dan Svantesson Legal Areas: Defamation Injurious falsehood

2/06/2015Copyright, 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’.

2/06/2015Copyright, 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)

2/06/2015Copyright, Dan Svantesson Is the plaintiff identified? MAIN RULE: “of and concerning the plaintiff”

2/06/2015Copyright, 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?”

2/06/2015Copyright, 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.

2/06/2015Copyright, 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.

2/06/2015Copyright, 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)

2/06/2015Copyright, Dan Svantesson Absolute Privilege: Communication between spouses – exists in common law, but not expressly in Qld & Tas (undecided)

2/06/2015Copyright, 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.)”

2/06/2015Copyright, 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.

2/06/2015Copyright, Dan Svantesson (Fair) Comment: S. 30 – “based upon proper material for comment” S. 31 – “public interest”

2/06/2015Copyright, 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.

2/06/2015Copyright, Dan Svantesson Remedies: Damages Injunctions

2/06/2015Copyright, Dan Svantesson Reading instructions: Contempt (All, for next week) Privacy (AML pages 254 – 276, for week 12) Freedom of Information (Briefly, for week 12)