Canberra’s Law Case Study
Introduction
Key Issues and Relevant Facts
The Key issues in this case are whether Sam’s article can be proven to have been in fact defamatory by either passing or failing the established test for defamation. A key issue here is also there are in law any defences are available to him. Another key consideration will be whether an Australian court will have jurisdiction over American –hosted server content. The issue of which laws (state laws or general commonwealth laws) determine a matter where both apply. The facts that are relevant in its determination include the fact that the article was actually published on the internet and released to the general public, that Carey and Darren were in fact having an open affair, that they were seen expressing romantic feeling in a public place (bar), that Sam has the freedom of expression by law, the fact that Sam and Carey come from Different Sates and the fact that the server hosting Sam’s magazine is run in the U.S.A and not Australian.
Relevant Law Applicable
The relevant laws that would be considered when determining this matter include the Uniform Defamation legislation , Case Law: by Boyd v Mirror Newspapers [1980] 2 NSWLR 449, Random House v Abbott (1999) 167 ALR 224 and Bekhoff v Burchill [1996] 4 ALER 1088._________________________
Application to the case
As Observed by Butler and Rodrick ,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 every part of the commonwealth. The constitution remains superior to the laws of the individual states.
Protection by Parliamentary legislation
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. Under the general law, an action for defamation lies in tort.
Threshold for establishing Defamation
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 whether defamation occurred requires the existence of publication of material that identifies the plaintiff (in this case Carey)directly or implicitly, which is defamatory . In this case, publication can be proved to have been made through electronic means as it was posted on internet, a thing that is verifiable. The second test seeks to establish whether an ordinary reasonable person would identify the 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 of the article would reasonably understand the material as referring to Carey. Thirdly, common law should seeks to establish whether indeed the content was 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 had 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.
Defences available to Sam :
Parliamentary Legislation and Case law (precedent)
In Sam’s defence, the Law gives him the right to freedom of expression guaranteed by the freedom of Information ACT(2004).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. Based on the doctrine of precedent, the determination of these two cases indicates that 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.
Qualified Privilege
Sam also claim Qualified Privilege by claiming that he had an interest or social and 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 judge’s 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.
Conclusion
Defamation did in in fact occur. Sam defamed Carey by publishing material that painted her in a negative light. However Defences available to Sam are strong defence for himself fin the matter.
Question 2
Introduction
Key Issues
Determination must be made whether Sam cast the judge in bad light publicly and whether this would impact public vie on his ability to deliver a non-biased judgement, and also whether the image of the court would be tarnished by his presiding over the case. Relevant issues to consider include whether the information published by Sam concerning Darren can be proved to be true, whether it was in the interest of the public to release the information and whether his alleged behaviour can be viewed as a thing that would compromise his objectivity in presiding over the case.
Relevant Law
Relevant law in this case includes Case Law : R v Dunbabin; Exparte Williams (1935) 53 CLR 434.( publication of information that leads to misgivings about a judges integrity and propriety and by extension ability to deliver un-biased judgements). Legislation will also apply here in the Privacy ACT (1998). The case also involves laws that protect the court against malicious defamation or other kinds of harm that may accrue from publications of material.
Application to case
Threshold for establishing Scandalizing contempt
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.
Support by Case Law
As a Supreme Court justice, any attack on his morality and integrity is an implied attack on the integrity of the court and the process over which the judge presides . The material published is of a nature that would likely ‘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 by him’ . The case R v Dunbabin; Exparte Williams (1935) 53 CLR 434 present as good example of how certain publishing of material can paint an officer of the court in the wrong light publicly and therefore create misgivings about his ability to make sound decisions as well as the determination of such publishing to be considered Scandalising Contempt. Criticism of the judge is clearly established in Sam’s published article and the criticism may be viewed by the judge as unjustifiable. Action may therefore be brought against Sam for Scandalising contempt.
Defences : Justifiable Fair Comment
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.
:Truth
Sam 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.
Question 3
Introduction
Key issues
The matters to be established in his case are whether Tom’s privacy was breached in a manner that is unjustifiable by law. Relevant facts include the fact that Tom shared the information with Sam in confidence and expressly stated a desire to have the information held by Sam in confidence.
Relevant laws
Relevant laws in this case include parliamentary legislation: Privacy ACT (1998) and Freedom of Information ACT (2004) as well as Case law where precedence have been set. International laws will apply here : Universal Declaration of Human Rights.
Application to case
Guarantees to Freedom of Expression : Privacy ACT
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 has an international and constitutional right to privacy.
: Universal Declaration of Human Rights
Article 12 of 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.
Conclusion
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
Section 45 of the Freedom of Information ACT forbids the divulging of material containing information held in confidence. Section 47 of the same chapter forbids the unnecessary disclosure of personal information about a person which is what Sam did.
Sam is in breach of confidentiality.
Question 4
Introduction
Key issues
The main issues to be established here is the existence of common Law aside from parliamentary legislation that may compel Tom to reveal the source of his information (his contact) and whether he would have a defence against such an action.
Relevant Law
Common law : Australian Privacy Principles and the constitution . Case law will also apply in tis case : Victoria Park Racing v Taylor (1937) 58 CLR 479. and ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .
Application to case
Australian Privacy Principles
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.
Precedent
There is no general common law protection of individual privacy: Victoria Park Racing v Taylor (1937) 58 CLR 479 . Tom could therefore be compelled at this stage of the defamation process to reveal the source of his information about Carey.
However Tom may have a cause of defence by citing precedence as well as the fact that the high court has not expressly disallowed it: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .
Question 5
Key issues
The main issues here is whether the law provides for the exercise of the freedom of information and expression rights to individuals while ensuring the protection of others from harm that may come about as a result of that expression.
As much as the righto freedom of expression is expressly granted by the constitution, and in international treaties such as the European convention for the Protection of Human Rights and Fundamental Freedoms, the law also takes care to ensure that that freedom of expression is not used at the expense of others individuals. It is not an absolute right but rather a thing that should be balanced and checked against other individuals’ rights and liberties .
Artilcle 29 provides that:
“in the exercise of rights and freedoms, everyone shall be subject only to such limitations determined by laws solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”
Application to case
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.The 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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