1. ACC213 Media Law and Ethics
Topic 8 Week 8
Defamation Defences

2. 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

3. 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.

4. 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.

5. 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.

6. 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? 

7. 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).

8. 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). 

9. 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. 

10. 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.

11. 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”.  

12. 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.

13. 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

14. 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”.

15. 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
In previous case against Yahoo!, Trkulja was
awarded $225,000 damages.

16. 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.

17. 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”.

18. 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.”

19. 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

20. Offer of amends
ss 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

21. 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.

22. Chris Kenny v ABC
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].

23. The Impact of Social Media

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