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Law of Communication MID SEMESTER ASSIGNMENT Essay Example

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LAW OF COMMUNICATION

University of Canberra

Faculty of Law

MID SEMESTER ASSIGNMENT

Semester 2 2013

UNIT NAME: Law of Communication (UG)

UNIT NUMBER: 9424

DUE DATE AND TIME: 9.am, Saturday 28 September 2013

Marks on this paper 40

Marks for assessment 40

EXAMINER’S NAME: Kate Chetty

CONTACT NUMBER: 0421 499 285

CONTACT EMAIL: [email protected]

QUESTIONS

  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)

The sole purpose of the law of defamation is to safeguard the reputation of an individual and should be defined appropriately to incorporate the freedom expression. What compose safeguarding individual’s reputation and the freedom of expression is constantly contentious and may vary based on place and time1. Defamation is understood to be a publication of a statement regarding an individual’s reputation that may lower him or her in the eyes of right-thinking members of the society or cause them to avoid her. However, a defamatory statement to the plaintiff may not be actionable if not published2. The plaintiff does not need to be directly mentioned or identified as long as the published information implicates him or her.

Therefore, Sam defamed Carey in his online article by the title ‘We object! B-grade celebrity’s brush with the long arm of the law’. The information published in the article directly implicates Carey as he mentions her relationship with Justice Darren Desperate and further nails her by identifying her by the initials of her name, Miss CC (Carey Classless). Sam’s defences include justification and consent, where he has to prove beyond reasonable doubt that the information published on the Female’s Fortnightly magazine is true. However, Sam failed to assess the credibility of information he obtained from Tom who is his friend and Carey’s former lover and he knew very well that ‘Tom is not afraid to get his hands dirty in pursuit of a good story’. Sam failed to send the article to his acquaintance Larry Lawful who is a lawyer for review before uploading it to Female’s Fortnightly magazine since he never wanted to lose a chance to post the gossip. This annoys Carey after reading the article bearing in mind she had separated with her husband the previous year. This constitutes defamation 3 as Sam directly attacks Carey’s reputation and she is thereby entitled to take an action for defamation against him.

  1. 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)

Sam have committed scandalizing contempt by publishing the article since it was meant to lower Carey’s dignity and tarnish her name and profession. Carey is a star of television soap opera in Australia and abroad. Available defences includes; consent and assumption of risk

If Carey who is the plaintiff expressly assents to the information contained in the publication as true on its face4, then the defendant may not be liable. Sam will be charged with defamation if the published information regarding Carey is based on facts and is true in the eyes of right-thinking members of the society.

The burden of proof in this case does not lie on the plaintiff to ascertain whether the information published was malicious. The burden of prove remains with the defendant as the law may not allow the plaintiff to recover damages if she is the one to argue her case as she may provide biased information about herself 5 . Therefore, the defendant must provide truth based on facts for justice to prevail. In this case, Sam has to prove to the court that the information published about Carey is true and factual. Sam may be forced to pay for damages to Carey.

  1. Has Sam breached Tom’s confidentiality through revealing in his article that Tom previously had an affair with Carey?(5 marks)

In his article by the title, ‘We object! B-grade celebrity’s brush with the long arm of the law’ Sam breached Tom’s confidentiality as they had made an agreement that Sam should not mention anything to do with Tom’s affair with Carey. Sam revealed to Tom that a few years ago he had a brief but passionate relationship with Carey. However, he never intended that information to go public and that is why he cautioned Sam not to mention about it. However, Sam went ahead mentioned Tom’s affair with Carey in his article and Tom was not happy about it when he read the article. To his disappointment, he was fired from his work place when his boss reads the article. This constituted to breach of Tom’s confidentiality prior to their agreement that he should not mention about his relationship with Carey.

  1. 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)

In the defamation proceedings of this case in common law Sam may be compelled to reveal the source of information he published on the magazine about Carey. Tom must prove before the court that the information provided was true and since it was not firsthand, he has to include Tom- a third party who was the original source of the information. Defences available may be unintentional defamation 6 where the defendant could argue that he was not aware as to whether the information he obtained from the third party was actually true. If it’s proved true the defendant is not exempted from the liability since defamation has already been caused to the plaintiff but the Act of Defamation gives the defendant an opportunity to have an amendment offer regarding to the innocent defamation7. However, under the Defamation Act the publisher must prove that he did not know how the plaintiff would take the news. Although in this case, Sam was out to create a ‘big story’ and make his magazine famous without caring about Carey’s reputation. The publisher must also prove that the published words were not defamatory on their face and he was just exercising his publication rights8.

  1. 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)

Although Sam had the right to the freedom of speech and given that, he was a journalist. He could have approached the issue conscientiously and publish information that would not directly attack the reputation of Darren and Carey. He could not rely on Tom’s information given that Carey was her ex-lover and he could have provided him with malicious information. Sam was also quite aware that Tom was ‘not afraid to get his hands dirty in pursuit of a good story’. However, this does not imply that Sam could not have written the story but he should have considered Darren and Carey’s privacy. Privacy is one of the basic human rights and personal information should be safeguarded even at the face of freedom of expression9. There is no need to expose the privacy of public figures concerning their private or sexual life unless and only when there is evidence that this privacy is an impediment to discharge of their duties to the members of the public.

Therefore, Sam could have the right of freedom of expression if Darren and Carey were not performing their duties as per the demands of the public. To strike a balance between Darren and Carey’s privacy and Sam’s freedom of expression the Australian law recognizes the need for a fair comment, which exists in relation to the expression of opinion10. The sole purpose of fair comment is not to ascertain the validity of the comment whether written or oral but to ensure that the opinion honest.

The defence of fair comment settles on facts that are proved beyond reasonable doubt to be true. If the defendant’s facts are malicious, he may not be successful in demonstrating that the comments were made in an honest manner11. The Australian Law recognizes the rights to privacy as well as those of freedom of expression.

References

Balkin, RP. (1996). Law of Torts. Sydney: Butterworths

Bloom, LH. (1985). “Proof of Fault in Media Defamation Litigation” Vol, 38 Vanderbilt Law

Review 247

Heerey, PC. (1985). “Publishing the Defamatory Statements of Others” vol, 59 Australian Law Journal 371

Tobin, TK et al. (1992).“Defamation” in Halsbury’s Laws of Australia. North Ryde: Butterworths

Walker, Sally.(2000). Media Law: Commentary and Materials (LBC Information Services. Sydney. Butterworths

1Balkin, RP. (1996). Law of Torts. Sydney: Butterworths

2 Bloom, LH. (1985). “Proof of Fault in Media Defamation Litigation” Vol, 38 Vanderbilt Law

Review 247

3 Tobin, TK et al. (1992).“Defamation” in Halsbury’s Laws of Australia. North Ryde: Butterworths

4 Heerey, PC. (1985). “Publishing the Defamatory Statements of Others” vol, 59 Australian Law Journal 371

5 Heerey, PC. (1985). “Publishing the Defamatory Statements of Others” vol, 59 Australian Law Journal 371

6 Heerey, PC. (1985). “Publishing the Defamatory Statements of Others” vol, 59 Australian Law Journal 371

7 Balkin, RP. (1996). Law of Torts. Sydney: Butterworths

8 Walker, Sally.(2000). Media Law: Commentary and Materials (LBC Information Services. Sydney. Butterworths

9 Walker, Sally.(2000). Media Law: Commentary and Materials (LBC Information Services. Sydney. Butterworths

10 Balkin, RP. (1996). Law of Torts. Sydney: Butterworths

11 Heerey, PC. (1985). “Publishing the Defamatory Statements of Others” vol, 59 Australian Law Journal 371