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Defamation
- 1. L A W O F T O R T S DEFAMATION
- 2. THE NATURE OF TORTS A tort is a civil wrong The law of torts deals with the rights and obligations people owe to others and the infringement of these rights and obligations The purpose of the law of torts is to provide compensation or damages to the people whose rights have been infringed.
- 3. LAW OF TORTS Torts are separated into categories and include: Negligence Defamation Nuisance Trespass
- 4. DEFAMATION Defamation is defined as?
- 5. DEFAMATION The tort of defamation is aimed at protecting the character of individuals against attempts to discredit their standing in the eyes of the community. A statement or other published material is therefore regarded as defamatory if it lowers the reputation of the plaintiff in the eyes of others in the community.
- 6. DEFAMATION A persons reputation is thought to be lowered when disparaging remards are made and he or she is subjected to ridicule or hatred so that people may shun or avoid that person. Defamation falls into two categories: Libel a statement made in a permanent form, either written (including radio/TV) that lowers the reputation of a person in the eyes of the community. A person may sue for libel without proving actual harm or loss. Slander - a statement made in a non-permanent form, by word of mouth. A person will only succeed in an action for slander if they can prove they suffered loss.
- 7. DEFAMATION To succeed in a claim of defamation the plaintiff must prove the existence of two elements: Publication, and Identification What do these mean?
- 8. DEFAMATION To succeed in a claim of defamation the plaintiff must prove: Publication - the material or statement was published either in the media, to a group of people or by being overheard by another person Identification - the material or statement referred to the plaintiff, either directly or indirectly and that statement lowered the reputation of the plaintiff
- 9. DEFENCES TO DEFAMATION Justification Contextual truth Absolute truth Fair report of proceedings of public concern Qualified privelege Honest opinion Innocent dissemination Triviality
- 10. DEFENCES TO DEFAMATION Justification this defence is used when the statement that is made is true. For example, a person tells a group of people that another person had been convicted of theft. If, however, the person had been charged, but not convicted, then it would not be true. The court assumes that a statement is false. The defence has to prove that it is true. The defendant may also argue that the statement was made in the public interest. For example, declaring that a charity director had been dealing dishonestly with the funds.
- 11. DEFENCES TO DEFAMATION Contextual truth - applies when the defendant can show that, in addition to the material complained about by the plaintiff, the publication contains one or more statements that are substantially true. For example, if a newspaper publishes an article that is substantially true, but states amongst other matters that Bill Smith has been convicted of assault when in fact he has been convicted of armed robbery it is unlikely to harm Bill Smith's reputation.
- 12. DEFENCES TO DEFAMATION Absolute privilege some members of the public are able to make comments without the threat o being sued for defamation because they can claim privilege. This particularly refers to politicians who can say what they like in the houses of parliament and not be sued for defamation. This is known as absolute privilege.
- 13. DEFENCES TO DEFAMATION Fair report of proceedings of public concern - applies when the defendant publishes a fair report of any proceeding of public concern including parliamentary proceedings, public inquiries, local government proceedings, a public shareholders meeting, or proceedings of a sports or recreation association.
- 14. DEFENCES TO DEFAMATION Qualified privilege - may be argued in a limited range of situations where the defendant can show that the persons receiving the publication have an interest in the subject and that the defendant's conduct in publishing the material is reasonable in the circumstances. Situations where this defence may be used include comments made in the course of writing a reference for someone, and statements made to the police. However, a defendant who abuses the privilege by being motivated by malice (spite) is not protected by this defence.
- 15. DEFENCES TO DEFAMATION Honest opinion - applies if the defendant can show that: (a) the matter was an expression of opinion rather than a statement of fact; (b) that the opinion relates to a matter of public interest; (c) that the opinion is based on proper material. Critical statements made by a reporter as part of a review of an art show, a music performance or a movie can be regarded as an honest opinion.
- 16. DEFENCES TO DEFAMATION Innocent dissemination - applies if the defendant can show they unknowingly sold or distributed a defamatory publication. The defence protects persons such as book sellers, newsagents, libraries or the provider of electronic services such as internet web sites. The defence will fail if the plaintiff can show the defendant knew or ought to have known the material was defamatory.
- 17. DEFENCES TO DEFAMATION Triviality - applies in circumstances where it is unlikely that the plaintiff will sustain any harm. An example is publication of material that is mildly offensive to the plaintiff.
- 18. PROBLEMS WITH DEFAMATION LAW The right to free speech may be jeopardised by the fact that a person could be sued for defamation. In the United States, freedom of speech is enshrined in their constitution. This is not the case in Australia. It is generally held that defamation must conform to the implication of freedom, even if conformity means that plaintiffs experience greater difficulty in protecting their reputation. What are some other problems with defamation law you can think of? (think of 2)
Editor's Notes
- #19: High cost to take any matter to court or to defend a case is very costly and the threat of being taken to court may stop someone saying something that could be in the public interest. This could mean that people with less money could be at a disadvantage. State laws defamation laws differ slightly in different states. This has become a problem with the advent of national newspapers and television stations.