These notes are on the topic of defamation in negligence. The notes contain general info, legislation and case-law on different factors of the offences such as: publication, what constitutes defamatory material, vulgar verbal abuse, interpretation of statements by the courts (false and true innuend...
DEFAMATION
Defamation act 2009
S2
- ‘A statement which tends to injure a person’s reputation in the
eyes of reasonable thinking members of society’
- ‘orally or in writing, a visual image, sounds, gestures or any
other method of signalling meaning and a broadcast on radio or
television, published on the internet and an electronic
communication’
•
S6:
1) Publication
2) By any means
3) Of a defamatory statement
4) Concerning a person
5) To one or more than one person
• Fax machine became method of communication > fell within boundary
of published > this covers progressive technology
• Libel also abolished and replaced with single tort of defamation
• Slander abolished by act
• Libel = written, slander = spoken.
Forrester v Tyrrell 1893
- Includes TV and broadcasts.
Confirmed in the act by s15:
- ‘Broadcasting defamatory words is to be considered as publication in
permanent form’ .i.e. libel.
Corliss & Diggin v Ireland 1984
,Member of Gardai transferred to another district in controversial
circumstances and P unsuccessfully argued that it contained an innuendo. This
amounted to a statement > transferring someone to a different post
- Actions containing an innuendo can be considered libellous
PUBLICATION
• To a person other than the person defamed
• May be a defamatory statement that is not published.
• Once you have a publication,
- all people included in the publishing can be a Defendant
• eg: Printers book sellers, newspaper sellers or a person who makes a
statement to a third party
• Even though not original author, they assisted
- Distributor who aren’t first publishers are exempt where they either
know nor ought to have known of the statement.
1) Must be to a third party
• No defamation where the statement is made only to the P
• Private phone call or letter addressed to P wont amount to a publication
- Posting can constitute publishing to a third party.
- Communication between spouses not generally publication
for policy reasons. They are treated as one.
- If statement is addressed to P but third party read it, such may =
publication.
Wenman v Ash 1852
- A D making a statement to P’s wife = publication.
Wenhak v Morgan 1888
- If D addresses it to his own wife, then there is no publication
(this is tidied up in the act) – Ss6.4 (A) & (B)
Electronic publication
S2 2009 ACT
, Godfrey v Demon Internet Ltd 2001
P alleged defamation of character by the ISP on internet. He wanted to sue
service provider of internet as the publisher. The ISP received the posting from
an anonymous third party, and it circulated and reached the D’s news server.
He stored it and transmitted the post to subscribers, who then download the
material. P informed D of posting and asked for it to be removed but this was
denied. This method of transfer was considered a publication. Case that tested
defamatory in the form of publication and with new technology.
- Publication = when a subscriber accessed the newsgroup after it was
transmitted from the server.
Analogy with bookseller who sells a defamatory statement about a P.
International publication
• These cases were first of their kind for electronic communication. The
act recognises the common law positions and includes them
Dow Jones v Gutnick 2002
. This involved an internet publication and the issue was where it occurred.
Could you have an international publication in the context of defamation? Dow
Jones NY website they posted an article and Gutnick claimed to be defamed in
it by insinuation of being a money launderer and a tax evader. It was uploaded
in New York and downloaded in a variety of places. One of these was in
Australia in Victoria where he lived, and conducted his business. He wanted to
sue here for the claim. Published = accessed
Publication occurred:
- When & where = it was accessed by the public
Defamation occurred:
- When = the damage occurred = Victoria
- When it was downloaded
Web not a unique form different to TV or anything else
- Well aware of where he resided and conducted his business
Internet is a means of a place where defamation can occur
Unintentional publication
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