Week 10LWB133

DefamationDefamation

Establishing the Action

1.Identify the possible defamatory material

• Defamatory on its natural and ordinary meaning• Innocent on the face of it, but defamatory

secondary meaning (innuendo) from the circumstances or knowledge of extrinsic information

2.Identify the applicable jurisdiction• Where has publication taken place?• If in Queensland - Defamation Act 1889 (Qld)

applies.• If in other jurisdictions, the common law may

apply.• The one defamatory matter may be published in

both jurisdictions through newspapers; television broadcasts; radio broadcasts (eg triple j)

Establish the Cause of Action

3.State the elements and apply to the facts

(i) Defamatory matter;

(ii) Reference to the plaintiff; and

(iii) Publication.

4.Conclude whether there is a cause of action in defamation or not.

5.Consider any defences.

6.Advise on remedies.

Defamation

Defences to Defamation

Defences to Defamation

Triviality Consent Innocent Dissemination Justification Fair Comment Privilege - absolute and qualified Constitutional Protection

Triviality

Queensland - s20 Defamation Act 1889

“In any case other than words intended to be read, it is a good defence to an action for defamation … to prove that the publication was made on an occasion and under circumstances when the person defamed was not likely to be injured thereby.”

Consent

Common Law

• complete defence

• consent may be express or implied

• consent must be to the particular form of the publication

Consent

Queensland

• no defence of consent as such

• s16(1)(f) - qualified privilege if the publication is made in good faith on the

invitation or challenge of the person defamed

Innocent Dissemination

Common Law

• defence for innocent publishers of libel written by others if:

- publisher had no knowledge of the defamatory material; and

- publisher was not negligent in failing to recognise the defamatory material

Innocent Dissemination

Queensland - ss 22, 25, 26 and 27 Defamation Act 1889- the protection only applies to the sellers of

books, newspapers, magazines and periodicals

- seller must have no knowledge that the matter contains defamatory material

- the protection also extends to the employees of the sellers

- does NOT protect lenders or printers

Justification

Common Law

- complete defence

- truth in substance and effect

substance: each and every statement of fact is accurate in all but the most minor of aspects

effect: even if the statement is literally true, the defence fails if a reasonable person would draw inferences which are not true

Justification

Queensland - s15 Defamation Act 1889• truth alone is no defence • must be true AND the publication must be for the

benefit of the public• s19 Defamation Act

“public benefit” is a question of fact for the jury

• “public benefit” = benefit more than just a few

Fair Comment

Common Law

• statement must be one of public interest;

• be a comment; and

comment NOT fact; and

based on facts (facts must be true or privileged)

• be fair

honest and NOT actuated by malice

Fair Comment

Queensland - s14 Defamation Act 1889

• eight subsections, the comment must fall within one of the categories

Fair comment on (for example): merit of decided court cases, conduct of such persons involved (ie lawyers, judges, witnesses…) literary works (including character of the author) and artistic works (including character of artist)

Next Lecture….

Defences continued…. Absolute and qualified privilege and the Constitutional defence of implied freedom of communication

AND

Remedies.