Week 10 LWB133 Defamation

Establishing the Action 1.Identify the possible defamatory material Defamatory on its natural and ordinary meaning Innocent on the face of it, but defamatory secondary meaning (innuendo) from the circumstances or knowledge of extrinsic information

2.Identify the applicable jurisdiction Where has publication taken place? If in Queensland - Defamation Act 1889 (Qld) applies. If in other jurisdictions, the common law may apply. The one defamatory matter may be published in both jurisdictions through newspapers; television broadcasts; radio broadcasts (eg triple j)

Establish the Cause of Action 3.State the elements and apply to the facts (i)Defamatory matter; (ii)Reference to the plaintiff; and (iii)Publication.

4.Conclude whether there is a cause of action in defamation or not. 5.Consider any defences. 6.Advise on remedies.

Defamation Defences to Defamation

 Triviality  Consent  Innocent Dissemination  Justification  Fair Comment  Privilege - absolute and qualified  Constitutional Protection

Triviality Queensland - s20 Defamation Act 1889 “In any case other than words intended to be read, it is a good defence to an action for defamation … to prove that the publication was made on an occasion and under circumstances when the person defamed was not likely to be injured thereby.”

Consent Common Law complete defence consent may be express or implied consent must be to the particular form of the publication

Consent Queensland no defence of consent as such s16(1)(f) - qualified privilege  if the publication is made in good faith on the invitation or challenge of the person defamed

Innocent Dissemination Common Law defence for innocent publishers of libel written by others if: - publisher had no knowledge of the defamatory material; and -publisher was not negligent in failing to recognise the defamatory material

Innocent Dissemination Queensland - ss 22, 25, 26 and 27 Defamation Act the protection only applies to the sellers of books, newspapers, magazines and periodicals -seller must have no knowledge that the matter contains defamatory material -the protection also extends to the employees of the sellers - does NOT protect lenders or printers

Justification Common Law - complete defence -truth in substance and effect  substance: each and every statement of fact is accurate in all but the most minor of aspects  effect: even if the statement is literally true, the defence fails if a reasonable person would draw inferences which are not true

Justification Queensland - s15 Defamation Act 1889 truth alone is no defence must be true AND the publication must be for the benefit of the public s19 Defamation Act  “public benefit” is a question of fact for the jury “public benefit” = benefit more than just a few

Fair Comment Common Law statement must be one of public interest; be a comment; and  comment NOT fact; and  based on facts (facts must be true or privileged) be fair  honest and NOT actuated by malice

Fair Comment Queensland - s14 Defamation Act 1889 eight subsections, the comment must fall within one of the categories Fair comment on (for example):  merit of decided court cases, conduct of such persons involved (ie lawyers, judges, witnesses…)  literary works (including character of the author) and artistic works (including character of artist)

Next Lecture…. Defences continued…. Absolute and qualified privilege and the Constitutional defence of implied freedom of communication AND Remedies.