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Law of communication: ananlysis the facts and answer the question. Essay Example

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    Undergraduate
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Law of Communication

Introduction

This paper presents a case analysis on the law of defamation using case laws and Australian statutes. It examines the elements that lead to bringing successful claims for defamation. Further, the factors necessary to determine whether a court or the judicial system has been scandalised or undermined in the eyes of the public are explored. It also examines the legal interpretation of breach of confidence and whether the common law can allow the defendant to reveal the source of information to establish substantial truth. Lastly, the ways in which freedom of speech and right to privacy tend to contradict and how they can be balanced are explored.

Has Sam defamed Carey in his online article?

The Key legal issue is determining the existence of defamation, and whether Carey can bring an action of defamation against Sam for publishing the online article.

In Australian Jurisdictions such as New South Wales,the Law provides that if the name is brought into disrepute, then it may give cause for an action in the tort of defamation for libel or slander. For the claim to defamation to hold, three elements must be satisfied.In New South Wales, Sections 11(1) of the Defamation Act 2005 No 77 provides that if an issue is published in a particular Australian jurisdictional area, the substantive law applicable in that specific area must be applied in the jurisdiction to establish the cause of action for defamation based on that particular publication. Defamation claims are actionable if they satisfy three elements:

First, the claimant must prove that the words lowered her reputation in the esteem of right-thinking people in the society and that she was not exposed to ridicule, contempt or hatred causing her to be avoided1. In the case, since Carey was divorced a year before and would therefore be at free will to seek another relationship, it is clear that the article has portrayed her as being promiscuous, which is damaging to her career as an actress.

Second, she has to prove that the words referred to her, even if she was not specifically named. In the case, it is clear that the article specifically referred to her. For instance, Sam wrote “… a certain celebrity of Here and Abroad fame (who we will simply call Miss CC)…” It is clear that the abbreviations (C.C.) and the name of the television soap opera Here and Abroad have a direct reference to Carey, as any reasonable person who knows her and the soap will quickly make out her identity.

Third, she has to prove that the words were published. In the legal sense, publication means communication to at least one person apart from the claimant. In the case, Sam published the article online.

The onus will thereafter shift to Sam – the defendant – to prove any of the three defences below, including:

First, Sam must give proof that the statement was justified (truth). In the case, although it is true that Darren and Carey were both seen making out, there is no fact to justify that that the alleged pregnancy belongs to Darren. It is also not true that she is in extramarital relationship as she is divorced.

Second, the publication must have been made on a privileged occasion. On this account, the information published overwhelms the protection of reputation if the information is in the interest of the public. It can be argued that being a celebrity and Darren being a judge, the information about the relationship was of interest to the public. Third, that the publication was a fair comment. Here, Sam has to prove that the statement was non-malicious and commented on facts that are in the public interest. Since Darren is a judge and Carrey a celebrity, Sam can argue that their relationship is in the interest of the public2.

Based on the facts of the case, Sam defamed Carrey in his online article.

Has Sam committed scandalising contempt by publishing his article?

Based on the facts of the case, Sam committed a scandalising contempt by publishing the article. Scandalising the court refers to the criticism of the judges or the court, which may undermine the confidence of the public in the judicial system3. In the case, Sam appeared as undermining the confidence of the public on the judicial system, when he cast doubts over the capacity of Judge Darren, who presided over an ongoing court case or a murder trial involving his wife. In 1935 landmark ruling in the case R. v. Dunbabin; Ex parte Williams, the Australian High Court described the term ‘scandalising’ as applying to published articles that seek to detract from the authority as well as influence judicial determination4. In the case Ambard v. Attorney-General of Trinidad5, the court further held that scandalous attempts can be committed through publishing materials that scandalise the judges or the court, by alleging that they lack integrity or are corrupt.


Defences

The onus will be on Sam – the defendant – to prove that the publication was a “fair comment”.

These facts were demonstrated in the case Nationwide News Pty Ltd v. Wills, where the court held that although scandalising is a form of criminal contempt, there would be no contempt of court if what the defendant did was merely to exercise his ordinary right to criticise the conduct of the judge or the court in good faith6. The court further stated that the judiciary should be open to criticism, as was held in the case Bridges v. California7.

Sam must also prove that the publication was aimed at the revelation of truth. As a general law, it has been severally upheld in common law jurisdictions that legitimate or reasoned criticism of judges or courts is not considered as contempt of court8. A leading case is Nationwide News Pty. Ltd. v. Willis, where the High Court of Australia suggested that “truth could be a defence,’ if the statement was specifically for the benefit of the public9. The High Court suggested that the revelation of truth at all events was justifiable when it is for revelation for the public, and hence the making of fair criticism that is based on fact does not add up to scandalising the court, even though the truth criticised or revealed truth that deprived the court of the public confidence10.

In conclusion, Sam committed scandalising contempt by publishing his article?

Has Sam breached Tom’s confidentiality through revealing in his article that Tom previously had an affair with Carey?

The key legal issue is breach of confidentiality. In common law jurisdictions, the approach of courts in determining breach of confidentiality is centred on determining how private information came into the possession of who disclosed it.

The established approach in Australia in bringing an action for breach of confidence is to establish whether the information is confidential, whether the information was conveyed in circumstances signifying obligation of confidence, and wether there has been an unauthorised use of information. These tests were defined in the case law Coors Pavey Whiting & Byrne v Collector of Customs11.

To establish a breach of confidential information, Tom must prove that the information is confidential, so that it can either be designated as threatened or alleged information. In the case study, circumstances existed that imposed an obligation of confidence. For instance, Tom had requested Sam not to mention his affair with Carrey, and gave him the information on condition that it remained confidential12.

In common law, the circumstances should be such that any reasonable who receives the information would have realised that such information was given to him in confidence, as a result it would impose to the receiver an equitable obligation of confidence. Such facts were demonstrated in the case Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales13, where the court held that even though there was no express mention of confidentiality, any discussion taking place between individuals that would generally be assumed to be confidential, those taking part would have an obligation of confidence14.

Further, the information must also have the quality of confidentiality. For instance, it must not be in the public domain or be common knowledge. Court have primarily used the reasonable person test to determine whether there is a level of obligation of confidence, and whether the information is adequately secret in nature to be capable of being designated an obligation of confidence. In the case law, the information about Sam and Carey’s affair had not been in public domain prior to the publication. This was demonstrated in the case Theakston v MGN Ltd, where the court upheld that confidentiality will not apply to all acts of physical circumstances despite the circumstance15. In which case, the confidentiality of the information stops when the information enters public domain.

Based on these facts, it can be concluded that Sam breached Tom’s confidence by revealing that he had previously had an affair with Carrey.

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?

Under the common law, Tom could be compelled at the stage of defamation proceedings to disclose the source of information he acquired about Carey. To establish this fact, it is critical to establish the defenses available to Tom.

With regard to the principle of justification, Tom would have to prove that that the alleged libelous statement is substantially true. By substantial truth, it means that on condition that the truth meets the substance of allegation, any minor accuracy will not leave out the defence16. Therefore, the motive of the publisher will be dismissed as irrelevant, on condition that the publisher can demonstrate that the allegation is true. Therefore, it will not matter whether the publisher or the source of the information was motivated by Malice17.

Tom would have to establish substantial truth as was demonstrated in the case Shihab v. Express-News Corp18. At this stage therefore, he would be forced to disclose the source of information to substantiate the true nature of his claims, that he Darren and Carey were in a relationship, and that Carrey was pregnant with Darren’s baby.

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?

Both Sam’s right for freedom of expression and Darren and Carrey’s right to privacy have potential conflicts. In Australia, the freedom of speech is a residual liberty, since it has existed in circumstances when exercising it was not limited by the common law or statue. On the other hand, libel law, which is largely determined by common law, regards the protection of individuals’ rights to reputation and therefore has been a significant restriction on exercising freedom of speech, or the freedom of press.

In my opinion Cary and Darren’s right to privacy and Sam’s right to privacy can be balanced when the rights are considered on a case-by-case basis, with the view on determining the relative importance of both Carrey and Darenn’s privacy rights and Sam’s right to freedom of expression19.

Such rights do not exist under Australian law20. The Australian law does not recognise unequivocal tort of privacy, either in the context of unwarranted exposure of private information by the press or generally. Indeed, all provisions under the Privacy Act are passed through the Freedom of Information Act21.

Such rights need to exist in Australia since both the right the freedom of expression and the right to privacy are essential human rights, which complement each other in holding the governments accountable to its citizens. Having such a right would ensure would ensure a balance between them is critical through analysing facts of a case, on a case-by-case basis with focus on various interests of the claimant and the defendant.

Conclusion

In conclusion, based on the facts of the case, Sam defamed Carrey in his online article. Further, Sam breached Tom’s confidence by revealing that he had previously had an affair with Carrey. In addition, Sam committed scandalising contempt that undermined the judicial system in the eyes of the public by publishing his article. Tom will be compelled under the common law at the stage of the defamation proceedings to reveal the source, in order to establish “substantial truth.” Lastly, Cary and Darren’s right to privacy and Sam’s right to privacy can be balance when the rights are considered on a case-by-case basis, with the view on determining the relative importance of both Carrey and Darren’s privacy rights and Sam’s right to freedom of expression.

References

Books, Articles and Journals

Banisar, David, The Right to Information and Privacy: Balancing Rights and Managing Conflicts (The International Bank for Reconstruction and Development, 2011) 16

Barendt, Eric, Privacy And Freedom Of Speech: Balancing Two Rights (1999) University College London http://www.academia.edu/1657047/Privacy_and_Freedom_of_Speech_Balancing_Two_Rights

Boylan, Paul, Celebrity/Employee Confidentiality Agreements: How to Make Them Work (2006) Entertainment and Sports Law Journal <http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume4/number2/boylan/boylan.pdf>

Electronic Frontiers Australia, Defamation Laws & the Internet (2006) <https://www.efa.org.au/Issues/Censor/defamation.html>

Handlsey, Elizabeth, Contempt And Free Expression: Multilingual Lessons, (2002) 7(149) Media & Arts Law Review <http://www.law.unimelb.edu.au/cmcl/malr/7-2-8%20Handsley%20Review%20Revised%20formatted%20for%20web.pdf>

Office of the Information Commissioner Queensland, Application of breach of confidence (2012) <http://www.oic.qld.gov.au/annotated-legislation/right-to-information/schedule-3-exempt-information/8-information-disclosure-of-which-would-found-action-for-breach-of-confidence/section-81/breach-of-confidence-at-common-law/application-of-breach-of-confidence?SQ_DESIGN_NAME=print>

Pearson, Mark, Scandalising media freedom: resurrection of an ancient contempt, Journal Study of Common, (20020 4(1), <http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1255&context=hss_pubs>

Pearson, Defamation and Malicious Falsehood <http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/140825414X.pdf>

Samson, Elizabeth, The Burden to Prove Libel: A Comparative Analysis Of Traditional English And U.S. Defamation Laws And The Dawn Of England’s Modern Day,» (2012) 20(771) Cardozo J. Of Int’l & Comp. Law, 771-784

Snow, Lisa, A Broader Approach to the Substantial Truth Defense (1988) 3(3) Bonston College Law Review, 769-786

Case Laws

Ambard v A-G for Trinidad and Tobago [1936] A.C. 332

Bridges v. California, 314 U.S. 252 (1941)

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434,

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

R v Dunbabin; Ex parte Williams (1935) 53 CLR 434

Shihab v. Express-News Corp., 604 S.W.2d 204

Theakston v MGN Ltd [2002] EMLR 398

1 Elizabeth Samson, The Burden to Prove Libel: A Comparative Analysis Of Traditional English And U.S. Defamation Laws And The Dawn Of England’s Modern Day,» (2012) 20(771) Cardozo J. Of Int’l & Comp. Law, 771-784

2 Pearson, Defamation And Malicious Falsehood <http://catalogue.pearsoned.co.uk/assets/hip/gb/hip_gb_pearsonhighered/samplechapter/140825414X.pdf>

3 Mark Pearson, Scandalising media freedom: resurrection of an ancient contempt, Journal Study of Common, (20020 4(1), <http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1255&context=hss_pubs>

4
R v Dunbabin; Ex parte Williams (1935) 53 CLR 434

5
Ambard v A-G for Trinidad and Tobago [1936] A.C. 332

6
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

7
Bridges v. California, 314 U.S. 252 (1941)

9
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1

10 Elizabeth Handlsey, Contempt And Free Expression: Multilingual Lessons, (2002) 7(149) Media & Arts Law Review <http://www.law.unimelb.edu.au/cmcl/malr/7-2-8%20Handsley%20Review%20Revised%20formatted%20for%20web.pdf>

11
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434,

12 Paul Boylan, Celebrity/Employee Confidentiality Agreements: How to Make Them Work (2006) Entertainment and Sports Law Journal <http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume4/number2/boylan/boylan.pdf>

13
Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales. [1977] RPC 137

14
Office of the Information Commissioner Queensland, Application of breach of confidence (2012) <http://www.oic.qld.gov.au/annotated-legislation/right-to-information/schedule-3-exempt-information/8-information-disclosure-of-which-would-found-action-for-breach-of-confidence/section-81/breach-of-confidence-at-common-law/application-of-breach-of-confidence?SQ_DESIGN_NAME=print>

15
Theakston v MGN Ltd [2002] EMLR 398

16 Electronic Frontiers Australia, Defamation Laws & the Internet (2006) <https://www.efa.org.au/Issues/Censor/defamation.html>

17 Lisa Snow, A Broader Approach to the Substantial Truth Defense (1988) 3(3) Boston College Law Review, 769-786

18
Shihab v. Express-News Corp., 604 S.W.2d 204,

19 Eric Barendt, PRIVACY and Freedom of Speech: Balancing Two Rights (1999) University College London <http://www.academia.edu/1657047/Privacy_and_Freedom_of_Speech_Balancing_Two_Rights>

21 David Banisar, The Right to Information and Privacy: Balancing Rights and Managing Conflicts (The International Bank for Reconstruction and Development, 2011) 16