(1) Has Sam defamed Carey in his online article ‘We Object! B-grade celebrity’s brush with the long arm of the law’ and are any defences available to him? In your answer, discuss any jurisdictional issues that arise in relation to Female’s Fortnightly. (10 marks)
Since both Sam and Carey are members of the federal commonwealth of Australia, they are both subject to the governance of the constitution of Australia, favourable or otherwise. The constitution expressly asserts that the laws made by the constitution and by bodies empowered by the constitution which here is the parliament are binding to people of every sate and very part of the commonwealth. The constitution remains superior to the laws of the individual states.
The in tandem with rights protected by the constitution of the commonwealth, the Human Rights ACT 2004 section 12 provides people with the right to privacy and the right not to have their families, home and correspondences interfered with unlawfully or arbitrarily. In this light, Carey has the right as a citizen of the common wealth to have her privacy protected. This is what informs and justifies her action against Sam for defamation.
Under the general law, an action for defamation lies in tort. In determining whether Sam did indeed defame Carey, it is important to note that the uniform defamation legislation, will be used, which is a law that guides cases and determination of defamation in all state of the common wealth.
Establishing an action for defamation requires the publication of material that identifies the plaintiff which is defamatory . In order to establish defamation, the case has to go through three steps set which are establishing the publication of material, that the material identifies a particular person and that the material is indeed defamatory. In this case publication can be proved to have been made through electronic means. The second test seeks to establish ‘whether an ordinary reasonable person would identify plaintiff as the person the publication refers to.’ Sam’s article can be argued to reveal Carey’s identity although he does not expressly state her name. He abbreviates the name in the article as CC which indeed are Carey’s abbreviations. The article also identifies where Carey works as well as her home town. This information is enough to enable an ordinary reasonable person to identify the celebrity referred to in the article as Carey. Readers are able to because of their knowledge of external facts , many readers o f the article would reasonably understand the material as referring to Carey.
The third tests is a common law test that seeks to establish whether indeed the thing said were of a defamatory nature. The threshold is to meet is that the material should have a tendency to ‘Lower the reputation of the plaintiff among ordinary people or make them think less of the plaintiff , to ridicule them, to hate them, despise them or treat them with contempt’.
Given that Carey ad just divorced her husband, news of her being involved with another man so soon after has the potential to cast her in a negative light. Moreover the suggestion that she has also had an affair with Tom Tattle tale gives an implication of immoral behaviour on Carey. The rude statements concerning her weight and size in the article may likely cause her to be ridiculed by people. Carey can therefore prove the elements of defamation and now it is up to Sam to establish the existence of a defence.
Sam’s options for defence may lie in the precedence set by Boyd v Mirror Newspapers [1980] 2 NSWLR 449 as well as Random House v Abbott (1999) 167 ALR 224 and
Bekhoff v Burchill [1996] 4 ALER 1088. It is not just enough to cause annoyance or hurt to a plaintiff’s feelings. The entire context of the publication must be considered. Sam may plead common truth as a complete defence if he can prove that what he wrote was true, both fact and innuendo. He may plead a defence of justification by proving that the material he published was indeed true or substantially true.
Sam also claim Qualified Privilege by claiming that he had an interest or social ad moral duty to relay information of Judge Darren’s behaviour given that he has been trusted by the public to rule on a case of an almost similar nature to what he has exposed himself to by having an affair with Carey. Sam may claim to have concern about the judges compromised behaviour and suggest a moral duty to share this information with the public .
Sam does not have any defence regarding liability in reference to the fact that his magazine is hosted by an American server, defamation occurs at the place of the publication and where it was read. Further issues of jurisdiction may need to be discussed in international conventions but presently , jurisdictional issues regarding the magazine will not affect this case.
(2) Has Sam committed scandalising contempt by publishing his article? In your answer, briefly discuss the defences that might be available and what the consequences for Sam might be. (5 marks)
Scandalising contempt involves the action of denigrating judges. In his statement that Judge Darren Desperate was ‘canoodling’ with Carey and that she was pregnant to him at a time when he is himself presiding over a case where the defendant is on trial for murdering his wife so that he can run away with his mistress, Sam makes innuendos that the judge may not be trusted to rule in a non-biased way seeing us he is himself lacking in integrity in the same area of morality. Sam therefore casts doubt as to whether the judge may be trusted to preside over the case. As a supreme Court justice, any attack on his morality and integrity i san implied attack on the integrity of the court and the process over which the judge presides. Sam has therefore committed Scandalising contempt for which action may be brought against him. The material published tends to ‘detract from the authority and influence of judicial determinations’ or ‘excite misgivings as to the integrity, proprietary and impartiality brought to the exercise of judicial office’: R v Dunbabin; Exparte Williams (1935) 53 CLR 434. The criticism was published to the general public, where there was criticism against the judge that may be considered unjustifiable as well as the clear intention and indeed the actual publication of the material.
Sam’s defences against such an action may include justifiable fair comment. If Sam can prove that his criticisms were honest and based on rational grounds.
He could also employ truth about as a defence by providing evidence that indeed the judge was romantically involved with Carey. the fact that the judges interaction with Carey was once in public in clandestine bar may provide evidence of this.
Among the consequences of Scandalising contempt if Sam is found guilty could include an imposition of fines, imprisonment, or order to pay costs so as to deter such contempt in future. The court may also order an injunction to restrain further contempt and a withdrawal of all comments that amount to such scandalising contempt.
(3) Has Sam breached Tom’s confidentiality through revealing in his article that Tom previously had an affair with Carey? (5 marks)
The privacy ACT 1998 describes privacy concerns :
“material which closely pertains to a persons inner most thoughts, actions and relationships that he may legitimately claim the prerogative of deciding whether, with whom and under what circumstances he may share it” .
Information divulged by Tom to Sam concerning his affair with Carey was of such a nature. It was within his prerogative what to do with the information. Sam’s action to share it was a breach of confidentiality.
Tom ha an international and constitutional right to privacy.
Article 12 o f the Universal Declaration of Human Rights guarantees protection from interference and attacks on one’s privacy, family, home and correspondence as well as attacks against his honour and reputation .
Sam was in breach of confidentiality by divulging information that was shared with him in confidence without express consent from Tom or on the basis of any arbitrary necessity or legal requirement
(4) Without reference to any legislation that might apply, could Tom be compelled under the common law at this stage of the defamation proceedings to reveal the source of the information he obtained about Carey? In your answer, discuss any defences that may be available to him. (5 marks)
The Australian Privacy Principles part2 section 3.4 provides for instances where an individual may be compelled to provide personal information that is of a sensitive nature if authorised by or under an Australian law or a court/tribunal order. Under this law, Tom may be compelled to reveal the source of the information he obtained about Carey.
There is no general common law protection of individual privacy: Victoria Park Racing v Taylor (1937) 58 CLR 479 .To ms could therefore be compelled at t his stage of the defamation process to reveal the source of his information about Carey.
However to m may have a cause of defence by citing precedence in lower courts of protection of his privacy as well as the fact that the high court has not disallowed it: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .
(5) How do you think Carey and Darren’s right to privacy can be balanced with Sam’s right to freedom of expression in this context? Do such rights exist under Australian law? Should they exist? (12 marks)
Sam’s rights to freedom of expression and to practice free journalism can co-exists with Darren’ s right to privacy is in exemptions to certain laws . Certain laws may compel the either party to allow the release of information as is best for the commonwealth. Sam however has the obligation to abide by laws that protect Darren’s rights especially in cases where the breach of these rights are not of a nature that is of any benefit to the people of the common wealth or required by the law or as a moral or social duty.
It is encouraged that individuals exercise proper practices in respect to privacy and codes of conduct. Applications of standards of privacy code must be adhered to diligently .In the interest of striking a balance however Indeed under Australian law there are laws that exist to compel the disclosure of private information to the public for certain defined reasons.
On the converse side however, there is an independent tort that allows for invasion of privacy in certain cases so as to ensure disclosure of private facts that of interest to the public. He same tort however exists to protect unreasonable intrusion of solitude, and guard against unnecessary negative publicity . Cases in which the state has exercised the power of the law to compel the disclosure of private facts include; P v D [2000] 2 NZLR 591, Hosking v Runting (2004) 7 HRNZ 301 and Brown v Attorney General [2006] NZAR 552 .
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