In the case of suing the Criminal Investigation Journal, Chuck could probably sue everyone who had something to do with the defamatory material a new the material was untrue and harmfull could be sued. In this case we concerned who is the writer of this article. We are able to sue author, publisher, printer or distributor. In case of Bob, the material was definitely defamatory definitely referred to the plaintiff, and communicated to the third party, when Bob raised issues about Chucks criminal past in the parliament as well as at an academic conference of crime. In all three cases Chuck can definitely sue, others factors have to be considered. Especially in Bob’s case Chuck should look at defenses to defamation.
First of all there is no defense to claim no intention to defame. First defense is the truth of Justification. The defendant has to prove that the statement is truth, if he she relies on this defense. In our case if Don could prove any of those statements this would provide a complete defense to his action. However defendant has to prove truth, he has to also prove that it was in public interest to raise this concern. Chuck can sue The Journal as well because, even if the defendant believe the statement is true, but is incorrect under the justification defense is sill liable.
None of the defendants can use the Justification as a defense. Next defense is Privilege. It can be Absolute of Qualified. Absolute privilege gives people complete immunity and right to say exactly what they want with no risk of legal action. This privilege is made to protect to interests of society and is very limited. ’ Absolute privilege applies in the parliament, it applies to a statements made by courts, applies between senior officers of state, between husband and wife and vice verse at common law as well as between solicitor and client’ (Gibson & Fraser, Business law, p.151).
This identifies very clearly that there is no reason for Chuck to sue Bob for the debate in parliament, because he is protected by Absolute privilege. But still can sue Bob because he repeated the statement at academic conference of crime.
Qualified privilege was designed to protect certain necessities of social intercourse. There is a limited freedom of expression, but is narrowed and interests of society are prostituted and no intention of malice has to be proved. Usually the qualified privilege is given when the person making the statement has got interest or a duty, of a legal, social or moral kind (Adam v. Ward, 1917,UK). It is very difficult to decide if the person has got interest or a duty of a legal (social) act. This means it has to be recognized by ordinary people with ordinary intelligence and moral principle. In the case Stuart v. Bell (1982) UK, The defendant saw a letter from chief constable of police, which said that the plaintiff committed a theft in a hotel. Defendant told privately plaintiff’s employer about the plaintiff committed the crime. The court held qualified privilege because the defendant was under the moral and social duty to make the statement. This privilege is usually applies on character reference, staff appraisal, school reports or credit reference.
Consent is type of defense occurs when the plaintiff agrees to publish the defamatory material.
Fair comment is usually a criticism in music, painting, books or etc. It has to be a statement on a matter of public interest. This comment has to be said as a comment not a fact (In my opinion…),
It has to be fair (defendant has to honestly believe it, without intention to do harm and it has to be based on a fact.). The last one we can classify as a defense is what we called Offer of amends. This happens if the defendant published the material that was defamatory, in an innocent statement without knowing it. This defense only applies in N.S.W. and Tasmania.
If we get back to our case Chuck will not have a problem to sue Don, but Chuck has to prove amount of damages, if he loses his job or loses his patient can sue for damages like loss of income, suffering, etc. It will be unclear who to sue in the case of Criminal Investigation Journal but definitely easy to prove (don’t have to prove damage it’s a libel). In case of Bob MP, it is waste of time to sue for what was said in the parliament, because its under absolute privilege, and should find out if academic conference of crime is not a well under Privilege, if yes it is waste of time and money to sue.
Remedies in defamation are not to punish the defendant; they are here to compensate the loss for the plaintiff and suffering as a result of defamation as well as damages for injury for his feelings and reputation. Types of Remedies are Damages. It is a compensation it term of money. Specific performance, where court can order to do something (apology) or Injunction, which can be Interim or Perpetual. Injunction is the order to stop something.
‘Measure twice, cut once’. In today ‘s era we have to be very careful in terms of defamation, because it ‘s very easy to defame someone and as we know apology is not a defense, and it ‘s better to be safe than sorry.
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Zdroje: John G. Flaming(1992),The law of tort, eight edition, Australia, The law book limited, R.P. Balkin (1996), Law of torts, 2nd edition, Perth, Butterworths, Mark Boulton ( 1988), Torts, 2nd edition, Australia General editor, Gibson & Fraiser, Business law, (2003), Perth, Prentice Hall