Yeah, that El Dribbles has nothing but insults. But then that's all he's ever had. :roll:
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Thats the article that is the cause of concern - Williams can stand accused of doing this maliciously given his Club ties with Manly. To me thats obvious. But thats just me you know
You do know its not only Williams thats sueing...other members are sueing alsoThats the article that is the cause of concern - Williams can stand accused of doing this maliciously given his Club ties with Manly. To me thats obvious. But thats just me you know
I may be geniused but to me its fairly obvious that a guy with such strong ties to Manly should take a step back and let the others speak up. Thats common sense. If it had been any other Tribunal member (and lets remember that Williams has been making the most noise) we would not be having this conversation. I will now go back to my building blocks:sarcasm:
http://www.abc.net.au/corp/pubs/legal/lawbook/ch01.htm#what
What is defamation?
Defamation occurs when published material, identifying a person, conveys a meaning which tends to:
However, it is lawful to publish defamatory material if you can rely on a recognised defence. These defences (discussed in detail later) include speaking or writing the truth (usually on public matters), reporting what goes on in Parliament or the courts, or stating honestly held opinions.
- lower that person's reputation in the eyes of reasonable members of the community;
- lead people to ridicule, avoid or despise that person; or
- injure that person's reputation in business, trade or profession.
Further, criticism and even abuse may not necessarily amount to defamation (regardless of whether a defence is technically available). Take these statements: `BHP is far too big and too powerful for comfort', and `The Minister is crazy to support more pulp mills'. Ordinary people are not necessarily likely to form a signficantly lower opinion of someone just because they are the subject of such criticism or abuse.
Publication
The defamatory material must be published or made known to someone other than the person defamed. Material is published in each place it is seen or heard; for example, a report on national radio or television can lead to legal proceedings for all States and Territories.
Who can be defamed?
Any living person, company, statutory corporation, trade union, local council or incorporated association or body can seek to protect their reputation using the defamation laws. Dead people cannot be defamed.
Identification
To succeed in a defamation action it must be proved that the publication was about some particular, identifiable person or organisation. It does not automatically follow that a publisher will be protected simply by not naming someone. Other information may still identify a person to the general public or, at least, to associates or to a smaller group.
Generalisations about a large group of persons will not identify any individual person in the group. For example, to say `all politicians are corrupt' or `chemical companies pollute' would not identify any individual politician or company. But be careful in a television or newspaper story not to make the simple mistake of using background pictures of an unnamed but clearly identifiable person or company. You might not think you are talking about the people in the pictures but the audience almost certainly will.
Be sure when referring generally to a group in a defamatory way that the group is reasonably large. If you say `The aldermen on Bogga Shire Council are corrupt' there are few enough of them that all will have been identified.
If you decided to name or otherwise identify someone, you should do two things: make sure you have a defence available, and make sure the identification is sufficiently clear to prevent confusion with some other person. Don't just say `A Griffith farmer, Giuseppe Ambrosio'. There may be several Giuseppe Ambrosios in Griffith! Include other details such as specific address and date of birth. This is particularly important in Court reporting.
Defamatory meaning
Defamation is as much about inference and innuendo as the literal meaning of explicit statements; and the meaning of what is said can be defamatory even if no such meaning was intended by you.
The test of whether material has a defamatory meaning is what the ordinary reader, listener or viewer would understand or infer from it. Always put yourself in the position of your audience because a person who sues has the right to set out the meanings which the media then must defend. This produces what we have dubbed the `Sir Humphrey Rule' in defamation:
You don't get to say what you said; they get to say what you said and you have to prove a defence for what they say you said!
While this is a real problem, publishers can and do succeed in arguing that the meanings (or imputations) claimed by opponents simply cannot be sustained. In 1989 the ABC succeeded in one case brought by Bond Corporation and one by John Brown (former Minister of Sport); in each case the plaintiffs claimed the ABC had said they were involved in corrupt or improper practices but a judge in the first and a jury in the second ruled that the reports did not carry those meanings. Some things to watch out for are:
Allegations:
How often do we read reports of `alleged' conduct? `The company chairman, Mr Jacobs, allegedly offered the Mayor a kick- back'. Journalists seem to think this protects them. But that is not the case. Reporting material as `allegations' by other people is not a protection because ordinary readers, listeners and viewers presume there is some factual basis to the `allegation'.
Of course, it is different for crime and court stories. Reporting that a person has been charged with an offence (provided this is true) and reporting the `allegations' made in court, will not be seen as a statement that the accused committed the act. It is assumed everybody knows the law of the presumption of innocence.
Also, as we will see later in the section on defamation, to rely on the defamation defence of fair and accurate report of court proceedings, it may be necessary to describe evidence as `allegations' until a verdict is reached.
Inferences and innuendoes:
Remember, the general public is capable of reading between the lines. The fact that you don't actually say `the Premier is corrupt' does not mean that a publication cannot have precisely that defamatory meaning if the audience could reasonably draw that inference from published information the Sir Humphrey Rule at work!
Even if a defamatory meaning cannot be inferred from the publication itself, it may be conveyed because of background facts known to some people. For example, the statement: `Roberts visits 1 Smith Street' seems innocent enough in itself but would have the defamatory meaning that `Roberts visits prostitutes' to anyone who knows that 1 Smith Street is a brothel.
Cartoons and satire:
There is more leeway for cartoons and satire at least when they comment on public people of current interest. The defence of comment, discussed below, often applies here but there is a further reason why cartoons and satire are usually all right: portraying people in exaggerated form is unlikely to injure their reputation by making them an object of ridicule. Material published as a joke and understood to be by those who saw or heard the material is not actionable; but serious allegations of fact lying behind a joke may be.
Who can be liable for defamation?
Those liable for a defamation include the media organisation which publishes, the person who wrote the material, a person being interviewed, a talk back caller, the producer, executive producer, editor and any other person who contributed in any way to the publication, if their contribution can be identified.
Repetition:
It is no defence to say that what is published is merely a repetition of something previously published. Every person who repeats or republishes a defamation faces the same liability.
Defences to defamation
Defamation is permitted if there is a defence. This is why the media publish defamatory material every day without incurring legal liability.
The defences differ between the various States and Territories but fundamentally they're the same:
Defence of truth
- reports of truth (in most places required to be on a subject of public interest rather than on some private issue);
- fair and accurate reports of privileged statements made in Parliament and courts etc; and
- honestly held opinion or comment based on true facts.
It will be no surprise that if you can prove something is true , there is wide scope to publish it even if someone is seriously defamed.
In Victoria, South Australia, Western Australia and the Northern Territory truth alone is a complete defence.
In New South Wales, a defendant must prove not only that the defamatory publication is true but also that it relates to a matter of public interest . Similarly, in Queensland, Tasmania and the ACT, a defendant must prove truth and public benefit. That is, true but purely private matters about which the public may be curious or inquisitive (such as the private lives of public figures) cannot be published under this defence in those places.
The onus is on the person who made or published the statement to prove truth. The person who is defamed does not have to prove it is untrue.
Proving truth under the laws of evidence is often difficult. It is not enough to rely on common knowledge such as `everybody knows the Minister is corrupt'. It is not enough to rely on what people have heard other people say about someone. Courts will not accept `hearsay' evidence. Purely circumstantial evidence will not do either.
Defamation cases are civil cases, not criminal cases; you need to prove that it is more likely than not that something is true; that is, on the balance of probabilities. It does not have to be proved beyond any reasonable doubt; that only applies in criminal cases. The defendant must be able to prove, by direct admissible evidence, that, on the balance of probabilities, all meanings contained in the material, including those which may be inferred or which arise by innuendo, are true.
To establish truth, you need:
Facts not known or not in existence at the time of the publication, can later be relied upon to prove truth.
- original documents and also someone who can verify their authenticity in court, either the author or someone else; or
- witnesses who directly saw or heard the defamed party or the circumstances that demonstrate or strongly suggest the truth of the allegations. Those witnesses must exist and be prepared to give evidence.
Truth is an absolute defence. It is irrelevant whether a person is motivated by malice at the time of publication.
In New South Wales there is a further defence of `contextual truth' : if some but not all the defamatory meanings are true and if those which are untrue do not significantly further damage the person's reputation, the defendant succeeds.
Defence of privileged statements and protected reports
Sometimes a person has the right or `privilege' to make defamatory statements, even if they are false or malicious, for example, a witness in a court case or a politician making a speech in Parliament. Because these are our core social institutions, there must be absolute freedom to speak within them subject to their own rules of contempt of Parliament and contempt of court. Within such institutions the right of free speech overrides the right to reputation.
When someone uses this `absolute privilege' other people can report it; but only if they do so accurately and fairly.
Court proceedings
The law permits a fair and accurate account of court proceedings, ie, statements made in open court proceedings (not in chambers, in closed court or where suppression rules apply) by judges, jurors, counsel or witnesses or the outcome of proceedings. Accordingly, it is completely permissible to state that a person or company has been found guilty of a criminal offence or to summarise the evidence stated against and for them in court. If you are reporting before the verdict is reached, you may need to describe evidence as `allegations' in order to be fair.
Make sure that you identify clearly that you are reporting what took place `in court'.
Be careful to report directly. Relying on what other reporters, lawyers or police tell you about what happened in a court case is dangerous.
Be careful when dealing with documents. Protected reporting extends to the contents of documents put into evidence in court, but does not extend to sworn statements and other documents filed but not yet admitted into evidence or read out in open court.
A common misunderstanding is that sworn statements (eg, statutory declarations, affidavits) not necessarily related to judicial proceedings, are available to be reported freely. This is not the case.
Parliamentary proceedings and papers
The law protects fair and accurate reports of proceedings of the State and Territory Parliaments and the Federal Parliament, and also of papers and reports published by their authority. Again, identify clearly that your report is about what took place `in Parliament'.
Do not rely on second-hand information about Parliamentary proceedings; other people often get it wrong.
Being fair and accurate often requires some care. You can't just select part of the proceedings and report it if another part contains a denial, disproof or a contrary position.
Royal commissions and inquiries
Fair and accurate reports of the proceedings of any inquiry, such as a Royal Commission, held under legislative or executive authority, or a fair extract from any such proceeding or the official report itself, are protected. Again you must be careful to maintain balance.
Government reports
Reports issued by a Government department, Ombudsman, officer of state or police officers for the information of the public, are accorded protection.
This does not cover everything published by the Government Printing Office because not all such publications are formal documents. Nor does this cover internal or inter-departmental memos or reports. Also, press releases are not covered.
Public meetings
Protection applies where reports of the proceedings of a public meeting that relate to a matter of public concern are published in a reasonable manner. This defence does not apply in the ACT or in Victoria for radio or television broadcasts.
New South Wales other categories
A wider range of protected reports is set out in the NSW Defamation Act.
Defence of comment or honest opinion
Australians are well known for robust debate, strenuous criticism and hard-edged satire. Politicians, for example, are under no illusion as to what they can expect from the media in public life.
People are free to express their honestly held opinions, even if those opinions are severe and unreasonableprovided the opinions are properly related to true facts which are set out in the report in question or which are commonly known.
There is enormous scope within this defence for freedom of expression. Much political commentary, business analysis, artistic review and satire constitute comment or opinion. These make up a major part of all news and current affairs reporting on all media, commercial and public.
More precisely, the `defence of comment' is available if the comment or opinion:
The comment defence fails if the comment did not represent the honest opinion of the defendant at the time the comment was made.
- is based on statements of fact which are true (set out or commonly known); and
- relates to a matter of public interest.
No protection is given to what are in reality statements of fact simply because they are stated as opinions; for example, `In my opinion these documents prove the director defrauded the company' is really a factual assertion unless all the facts in those documents are summarised in the report.
The whole rationale of the comment defence is that, if all the facts are set out or known, the audience can make up their own mind about the opinions expressed.
In rare cases, such as the notorious case where `Leo Schofield went down to the Lobster'his biting restaurant review resulting in a large damages award, juries or judges may decide that opinions go well beyond being properly related to true facts or may indeed not be opinions at all but statements of fact which the writer can't prove to be true.
Again in the O'Shaughnessy case, it was held that a lambasting theatrical review in The Australian could be said to have gone beyond opinion and to have stated as a matter of fact that an actor/director deliberately produced Othello to favour his own performance at the expense of his colleagues. So be very careful when discussing a person's motives.
However, it would be a serious over-reaction to regard these cases as making significant inroads against energetic criticism and comment. This conclusion is well borne out by the result when architect Harry Seidler sued Fairfax over Patrick Cook's `retirement park' cartoon. Seidler lost. The Court decided that the cartoon was an honest opinion based on the facts of Seidler's architecture which was generally well known. The caption `retirement park' was a joke and didn't have to be true; the audience would not be likely to read it as a statement of fact that Seidler had actually designed such a park.
The very limited defence of qualified privilege
Australian journalists constantly argue for a broad `reasonable discussion of serious matters of public importance' type defence. They point to the American Sullivan v New York Times defence which permits free discussion of people or issues in the public eye, even if untrue, provided there is an `absence of malice'.
In Australia we have no such general defence. The closest thing is called statutory `qualified privilege' under the NSW Act and `qualified protection' under the Codes in Queensland and Tasmania.
Common law qualified privilege
Under the common law in Victoria, South Australia, Western Australia, the ACT and the Northern Territory, qualified privilege is only a defence where the publisher or speaker has an interest or a legal, social or moral duty to communicate to a person and that person has a corresponding interest or duty to receive the information. This reciprocity of both interest and duty is essential.
This common law qualified privilege was traditionally designed for one-to-one communication (eg. a reference for an employee). The media as a rule has failed to extend this privilege to its publications; not every member of the public has a sufficient interest in the information and in only rare cases does the media have a duty to publish.
One exception occurs when the media provides a vehicle to a person for a reply to a public attack made on that person; eg. an attack in Parliament or in the press, provided that the reply does not include counter charges which are unconnected with the substance of the original attack.
Another exception is publishing the name, description and/or picture of a dangerous person who is being sought on criminal charges where the police request this for the protection of the public.
However, in Lange v ABC the High Court recently recognised a corresponding duty and interest existed between members of the Australian community in disseminating and receiving information about government and political matters that affect the people of Australia provided that the making of the publication was reasonable and the publisher was not actuated by malice (ie. ill-will or some other improper purpose). The concept of `reasonableness' is one found in the NSW Defamation Act (see below) and is a requirement not easily satisfied. The High Court made it clear that as a general rule conduct will not be reasonable unless the publisher had reasonable grounds for believing that the defamation was true, took all reasonable steps to verify the accuracy of the material, did not believe the defamation was untrue and sought a response from the person defamed and published any such response.
Statutory qualified privilege
New South Wales:
The Defamation Act provides that there is a defence of qualified privilege where:
Queensland and Tasmania:
- the publisher knows, or reasonably believes, that the audience has a genuine interest in having information on a particular subject; and
- the publisher's whole conduct in publishing the defamatory information is reasonable in the circumstances; it must not merely be reasonable to publish on a matter of public interest. For example, it is necessary also to consider the steps the publisher took to verify the story and the relative importance of the material.
There are two excuses or defences under the codes:
Good faith means that the publication must be relevant to the subject of public interest, the manner and extent of publication must be reasonable, the reporter must not be motivated by any improper motive and the reporter must not believe the defamatory matter to be untrue.
- A publication made in good faith in the course of the discussion of some subject of public interest (the public discussion of which is for the public benefit) is permitted.
- A publication made in good faith for the public good is permitted.
Remedies for defamation
Despite a number of huge damages awards here and overseas in recent years for defamation, there is no need for panic at the threat of legal proceedings. Seek competent legal advice. Remember that many cases are clearly defensible. Often corrections, rights of reply or, if essential, an apology can be negotiated in full settlement. Many cases do not proceed and few ever go to trial.
Damages
The main purpose of a defamation action is to compensate people for the injury to their reputation and for hurt feelings. Since companies and incorporated bodies do not have feelings, they can only recover for loss of reputation.
But neither natural people nor companies have to prove actual loss. The judge or jury simply makes their own evaluation.
Unfortunately, there are no guidelines so damages awards can be very unpredictable.
When making a damages award a judge or jury will consider the nature of the defamatory matter and the circumstances in which it was published; for example, a program broadcast nationally may expect a higher award of damages than one that is not.
If the harm to the plaintiff is exacerbated by the nature of the publication or the defendant's conduct after publication (eg, failure to apologise, unsuccessfully pleading the defence of truth, republishing), a component of `aggravated damages ' may be included.
Punitive damages may be awarded in some jurisdictions. They are awarded not to compensate the plaintiff but to punish a defendant who was vindictive, malicious or showed contemptuous disregard of the plaintiff's rights. (These have been abolished in New South Wales.)
Injunctions
Generally, injunctions will not be granted to stop publication of allegedly defamatory material. Courts are reluctant to prevent freedom of speech on matters of public interest, and there is always a right to sue for damages after publication if a person has been defamed.
However, some recent cases indicate that courts may now be more willing to grant injunctions in certain circumstances. Suffice to say that a publisher will not as a rule be prevented from publishing allegedly defamatory material if it can be shown that there is at least some hope of successfully defending any subsequent defamation action.
Stop writs:
There is a prevailing myth that the mere issue of a writ for defamation automatically silences further media discussion on that subject. The myth would have us believe that, with the issue of a writ, the law of contempt comes into play preventing further publication on a subject before the courts.
But the courts have regularly rejected this notion, seldom granting injunctions to protect defamation proceedings. Therefore, only very rarely should the issue of a writ lead a publisher to make a decision to cease further publication on a matter.
If a defendant can show that a writ was issued in order to intimidate a publisher to stop further publication rather than to vindicate reputation, the writ may be dismissed as an abuse of process.
54
Pain is coming for you, fool
