Bcm 113 – media ethics and law blog post 2
Recap from lecture:
Q: What is defamation?
u Statement or information that injures a
person’s reputation.
u Must be ‘published’ to a third person.
u Publication identifies the “hurt” person.
u Macquarie Dictionary:
‘the wrong of injuring another’s reputation
without good reason or justification’ (See
Pearson & Polden p. 209).
When is material defamatory?
u If meanings (imputations) that come from the material expose a victim to
hatred, contempt or ridicule.
u If they tend to lower the affected person’s reputation in the estimation of
right-minded observers, or make others shun or avoid the person.
Q: What is the difference between ‘libel’ and ‘slander’, and what is the legal distinction between the two?
‘libel’ (permanently published material)
‘slander’ (words that are spoken)
There is no legal distinction between ‘libel’ and ‘slander’ in Australia.
Q: Who can sue for defamation?
u Legal changes in Australia in 2006 have meant close to uniform
defamation laws across the country.
u Companies can sue if they employ fewer than 10 people and is not
related to another corporation.
u They can also sue if they are non-profit.
u Reason: the McLibel case http://www.mcspotlight.org/case/
Government and other bodies
u Local government bodies and public authorities cannot sue. But their
officers can take defamation action if they can prove their reputation was
injured as individuals.
u Dead people cannot be defamed, except in Tasmania. But, be careful
not to defame the living via a report on the dead.
Q: What is meant by ‘contextual truth’ as a defence against defamation? And, what about ‘qualified privilege’?
Truth
u Truth is a complete defence to defamation.
u It is said that publishing the truth about someone does not lower their
reputation, but places it at its proper level.
u Publishers of material claimed to be defamatory must not just prove the
truth of a statement. They must prove the meaning taken from it are
substantially true.
Contextual truth
u Publishers can argue that an allegedly defamatory publication carried
other meanings that were substantially true.
u If so, it might be said that the defamatory meanings did not further harm
the reputation person suing.
u Sufficient evidence is needed to show a report is “substantially” true, but it
is good practice for journalists to aim for 100 per cent accuracy.
u Pearson argues that truth alone is not often used as a defamation
defence. Hard to prove, and cases where it is easy to establish don’t often
get to trial.
Qualified privilege
u Allows defamatory communication when there is a legal or moral
obligation to make it.
u Applies to professional, business and educational communications.
u Relies on duty for publisher to publish and interest for receiver to obtain the
information
Q: What are the other defences against defamation?
Justification
It is a defence to publishing defamatory material if the publisher can prove that the defamatory imputations of the material are substantially true.
u An alternative term used to describe the truth defence to defamation
u Accountability mechanism – held to account for what you say and publish
u Evolved over time to protect individuals’ standing in the community
u Covers all citizens including the media
Exists in various forms in most countries
2. Absolute Privilege
Another defence to defamation arises if the publisher can demonstrate that they published the content in the course of proceedings that attract absolute privilege, including:
u parliamentary proceedings – also called parliamentary privilege
u reports published by order of parliament
u proceedings of courts or similar bodies
u statements made in legal proceedings
u certain communications between officers of State, for example Ministers
acting in their official roles and certain officials of government acting in
the course of their official duties.
u Information published by the Crown
3. Publication of Public Documents
Proof that defamatory material was part of a public document (or copy thereof) or a fair summary/extract from a public document is also one of the defences to defamation.
A public document is one of the following:
report, paper or record of a parliamentary body;
judgment, order or determination of a court or tribunal;
report or document under the law of any country which has been authorised to be published or is required by a parliamentary body;
document issued by the government of a country;
record open to inspection by the public;
document that is issued, kept or published in another Australian jurisdiction and treated as a public document; or
document relating to Special Commissions of Inquiry or Civil and Administrative Tribunal.
The person defamed can negate this defence if he or she can show that the material was published dishonestly.
4. Fair Report of Proceedings of Public Concern
Publishers can also make out a defence if they can prove the material was or was a part of, any report on proceedings publicly held in a parliament, court, tribunal, government body or before the Ombudsman.
u If it’s in the public interest — such as the performance of an elected
official, or the quality of a product or work meant for public consumption.
u Fair report defence for coverage of court/legal proceedings and
parliament.
u Public interest in open administration of justice.
u Report must be fair and accurate so that others “will see a substantially
correct record” of what was said and done (pref. verbatim).
5. Qualified Privilege for Provision of Certain Information
u Allows defamatory communication when there is a legal or moral
obligation to make it.
u Applies to professional, business and educational communications.
u Relies on duty for publisher to publish and interest for receiver to obtain the
information
Another defence to defamation exists if the publisher can prove that the:
person who saw the material has an interest in having information on the subject;
material was published to give the person such information; and
publisher’s conduct was reasonable.
The person defamed can negate this defence if they show that the material was published maliciously.
6. Honest Opinion
u Helps reviewers, editorial writers, and arts, sport and political
commentators.
u Protects public interest in freedom of discussion.
u Coco Roco case in 2003
It is a defence to publishing defamatory material if the publisher can prove that the:
material was an expression of their own, their employee or agent, or of another person other than their own, rather than a statement of fact;
opinion related to a matter of public interest; and
opinion was based on material that is substantially true or privileged.
The person defamed can overcome this defence by proving that the:
opinion was dishonest;
publisher did not believe the employee or agent honestly held the opinion; or
publisher had reasonable grounds to believe another person did not hold the opinion at the time of publication.
7. Innocent Dissemination
It is a defence to publishing defamatory material if the publisher can prove that they:
published the material in the capacity of a “subordinate distributor” meaning that they were not the primary distributor;
neither knew or could not have reasonably known that the matter was defamatory; and
did not have the knowledge because of any negligence.
8. Triviality
It is a defence to publishing defamatory material if the publisher can prove that the material was unlikely to cause harm.
u If it can be shown that it was unlikely that the publication would cause harm to the plaintiff, it is a defence to a defamation action.
See: Defamation Act 2005 (NSW)
Tutorials:
1. What is defamation?
2. What are the penalties and common defences used against claims of defamation?
Civil remedies
u With rare exceptions, defamation is regarded as a civil wrong.
u Courts award monetary amounts as damages to remedy the injury done
to a person’s reputation.
u Record payout: Geoffrey Rush (2020) won $2.9 million in damages from
The Daily Telegraph, for articles published in 2017, alleging sexually
inappropriate behaviour.
u In 2018, Rebel Wilson was initially awarded $4.5 million in damages from
Bauer Media. HOWEVER, an appeal reduced this to $600,000.
3. Who are considered responsible for defamatory content online?
The Ease and accessibility of the internet is creating an increase of widespread defamatory content published on social media outlets and online discussion forums.
need for greater regulatory responses that will reduce online defamation.
Recent academic debate queries the level of responsibility that online intermediaries such as Internet Service Providers (ISPs) and search engines (such as Google) should bear for defamatory content and whether they should in fact be held liable for any defamatory content passing through their networks or are hosted on them.
difficulties of regulating the internet provides for the contextual struggles in imposing liabilities on online intermediaries
tutorial task:
Group 7: Mr Trkulja v Google (and Yahoo!)
In a serial defamation drama, Australian Michael Trkulja sued Google for
defamation — after successfully suing Yahoo! for the same.
In a serial defamation drama, Australian Michael Trkulja sued Google for
defamation
High Court of Australia found Google liable for defamation for certain search results appearing in Google searches, google images
- displayed pictures of Mr. Trkulja along with various convicted criminals as the search result of the phrases, “Melbourne criminals” and “Melbourne criminal underworld figure,”
And auto-complete predictions on Google for “michael trk” displayed phrases such as “michael trkulja criminal.”
Mr. Trkulja alleged that Google published defamatory images between 1 December 2012 and 3 March 2014 to persons in Victoria.
the High Court found the material published to be capable of being defamatory
What are the alleged defamatory imputations and how did they come
about?
Google images displayed pictures of Mr. Trkulja along with various convicted criminals as the search result of the phrases, “melbourne criminals”, “melbourne criminal underworld figure”,
defamatory depending on the what an ordinary reasonable person would understand from it.
Google displayed images in the search result of phrases, “Melbourne criminals” and “Melbourne criminal underworld figure,”
defamatory depending on the what an ordinary reasonable person would understand from it.
Google removed certain material, without admission, and blocked certain auto-correct predictions.
Mr. Trkulja prayed for damages on the basis of Google’s knowledge of false imputations and refusal to accept any responsibility for the alleged defamatory publications and also for an injunction against Google [para. 17].
Google’s defence:
Claims for not being the publisher
Google applied for summary dismissal on three grounds: (1) that Google was not the publisher; (2) that the matters were not defamatory in nature; and (3) that Google, as a subordinate distributor, was entitled to immunity from the suit under Section 32 of the Defamation Act 2005 (Victoria).
the primary judge rejected the contention of Google that the proceeding has no real prospect of success, finding Google to be the publisher and that a reasonable search engine user would assume Mr. Trkulja to be a convicted criminal based on the matter published.
What are the lesson(s) for publishers of online content?
Responsibility for published material
Google was found to be the publisher and that a reasonable search engine user would assume Mr. Trkulja to be a convicted criminal based on the matter published.
Google had to pay 2012 received $200,000 in damages.