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Defamation
Vicarious Liability
What is defamatory?
A defamatory statement may be defined as one
Procedure
Defamation actions are heard by a judge
and jury.
Judge tribunal of law determines the
meaning and linguistics.
Jury tribunal of fact determines whether
the matter is defamatory
Elements of Defamation
Elements
Matter must be capable of bearing a defamatory
meaning (tarnish reputation).
Matter must be published.
Matter must relate to the plaintiff (cannot sue for
someone else).
Absence of lawful justification (or Defences).
Lewis v Daily Telegraph Ltd [1964] AC 234 Articles published in the Daily
Telegraph and Daily Mail with headlines Enquiry on Firm by City Police and Fraud
Squad Probe Firm which stated the police were inquiring into affairs of a company of
which the plaintiff was chairman. Plaintiff alleged the words meant he was guilty of
dishonesty or fraud. Held on appeal the words in question were not capable of
inferring guilt of fraud in their ordinary meaning
Random House Pty Ltd v Abbott (1999) ATR 81-533 Defendants had
published a statement indicating that two politicians had changed party
immediately after having sex with an unnamed female, who later married
one of the Ministers. The innuendo that each politician was prepared to
abandon his political principles in exchange for sexual favours was readily
drawn.
Elements Publication
Matter must have been communicated (or published)
to a person other than the plaintiff or there is no injury to
reputation Section 9 Defamation Act 1974.
Publication need not be to a large audience. Utterance
to a single individual is enough, provided he/she is other
than the plaintiff himself/herself.
Old common law rule that communication between
spouses cannot constitute publication remains the law.
Multiple distribution and republication Section 20
Defamation Act 1974.
Innocent republication, newsagent reselling paper
Section 36 Defamation Act 1974.
Truth - General
Section 15 Defamation Act 1974
(1) ... the truth of any imputation complained of
is not a defence as to that imputation except as
mentioned in this section.
(2) It is a defence as to any imputation
complained of that:
(a) the imputation is a matter of substantial
truth, and
(b) the imputation either relates to a matter of
public interest or is published under qualified
privilege.
The defendant need only prove the substantial truth of the statement
Alexander v NE Rys (1865) 122 ER 1221 statement that the
plaintiff had been sentenced to a fine or three weeks imprisonment
was justified by showing that he had been given the alternative of
two weeks imprisonment.
1.
2.
Absolute Privilege
Three established occasions of absolute privilege:
1.
2.
Where a person is appointed under the authority of an Act or Imperial Act or under
the authority of Her Majesty, of the Governor or of either House or both Houses of
Parliament to hold an inquiry, there is a defence of absolute privilege for a publication
by the person in an official report of the result of the inquiry.
Common Law bases in judicial proceedings.
3.
Qualified Privilege
The publication of defamatory statements is in some
instances protected by qualified privilege, in recognition
of certain necessities of social intercourse.
Section 22 (1) Defamation Act 1974:
Where, in respect of matter published to any person:
(a) the recipient has an interest or apparent interest in
having information on some subject,
(b) the matter is published to the recipient in the course of
giving to the recipient information on that subject, and
(c) the conduct of the publisher in publishing that matter
is reasonable in the circumstances, there is a defence of
qualified privilege for that publication.
Qualified Privilege
Section 22 (2A) Defamation Act 1974
In determining for the purposes of subsection (1) whether the conduct of the
publisher in publishing matter concerning a person is reasonable in the
circumstances, a court may take into account the following matters and
such other matters as the court considers relevant:
(a) the extent to which the matter published is of public concern,
(b) the extent to which the matter published concerns the performance of
the public functions or activities of the person,
(c) the seriousness of any defamatory imputation carried by the matter
published,
(d) the extent to which the matter published distinguishes between
suspicions, allegations and proven facts,
(e) whether it was necessary in the circumstances for the matter published
to be published expeditiously,
(f) the sources of the information in the matter published and the integrity of
those sources,
(g) whether the matter published contained the substance of the persons
side of the story and, if not, whether a reasonable attempt was made by the
publisher to obtain and publish a response from the person,
(h) any other steps taken to verify the information in the matter published.
Qualified Privilege
Principle categories of Qualified Privilege:
Freedom of political communication
Theophanos v Herald Weekly (1994) 182 CLR
104
Defamation law and the Constitution
Lange v ABC (1997) 71 ALJR 818.
Mistaken character of recipient
s21 Defamation Act 1974.
Protected Reports
Section 24(1) of the Defamation Act 1974
"protected report" means a report of proceedings
specified in clause 2 of Schedule 2 (for example,
inquiry held under the legislation or authority of
the government of any country ).
Section 24(2) defence of publication of a fair
public report
Requirement of good faith for public information
or the advancement of education Section 26.
(1)
(2)
There is a defence for the publication of a notice in accordance with the direction of a court of
any country.
Where a defence is established under subsection (1), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the purpose of giving effect
to the direction.
Section 28
(1) There is a defence for the publication of any notice or report in accordance with an official request.
(2) Where a defence is established under subsection (1), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the purpose of giving effect
to the request.
(3) Where there is an official request that any notice or report be published to the public generally or
to any section of the public, and the notice or report is or relates to a matter of public interest,
there is a defence for a publication of the notice or report, or a fair extract or fair abstract from,
or a fair report or summary of, the notice or report.
(4) Where a defence is established under subsection (3), the defence is defeated if, but only if, it is
shown that the publication complained of was not in good faith for the information of the public.
(5) This section does not affect the liability (if any) in defamation of a person making an official
request.
(6) In this section, "official request" means a request by: (a) an officer of the government (including a
member of a police force) of any Australian State, or of the Commonwealth, or of any
Territory of the Commonwealth, or (b) a council, board or other authority or person constituted
or appointed for public purposes under the legislation of any Australian State, or of the
Commonwealth, or of any Territory of the Commonwealth.
Comment
The defences under this Division are not available to any comment
unless the comment relates to a matter of public interest.
Comment
Opinion or fact:
Kemsley v Foot [1952] AC 345
The publisher may make an offer to make amends to the aggrieved person.
(3)
Remedies - Injunction
Courts are generally unwilling to grant an
injunction at an interlocutory level as it may
infringe freedom of speech and amount to a
usurpation by the judge of the function of the
jury.
However, in cases where the defendants case is
hopeless, the courts will issue an injunction
Chappell v TCN Channel 9 (1988) 14 NSWLR 153
Remedies - Damages
Part 4 Defamation Act 1974 (Sections 46 to 48).
Relevant harm defined in s46(1) as harm
suffered by the person defamed.
Exemplary damages are not available in NSW
Section 46(3)(a).
Relevant factors s46A there must be an
appropriate and rational relationship between
relevant harm and the amount of damages
awarded.
VICARIOUS LIABILITY
Vicarious liability makes D (usually
the master/employer) liable for the
torts of another (usually his or her
servant/employee) although the
master is without any blame or fault.
SERVANTS AND
INDEPENDENT CONTRACTORS
Vicarious liability arises only in respect of the torts
of the servant
The master/employer is therefore responsible only
for the torts of the servant and not the independent
contractor
For the master/employer to be held liable, the
tortfeasor must:
be a servant
commit the tort in the course of his or her
employment
WHO IS A SERVANT?
A servant is one who is under a contract of service
to another an independent contractor is under a
contract for services
The contractor is paid for the job by results rather
than for time spent, receives a fee or commission,
the servant receives wages
The contractor is usually employed on a casual
basis, the servant on a permanent basis
The contractor usually specifies his/her work
schedule and supplies his/her own tools
The master may select the servant for the task
WHO IS A SERVANT?:
THE CONTROL TEST
If the Master controls what the employee does and
how it is done, then the employee is a servant. The
relationship will give rise to Vicarious Liability.
Zuijs v Wirth Bros: The case of the trapeze artist
What is essential is whether there is lawful authority
to command or give directives if there is scope for it.
Stevens v Brodribb Sawmilling
IN THE COURSE OF
EMPLOYMENT
D is liable only if the servant committed
the tort in the course of his or her
employment
Deaton v Flew
Morris v Martin