When person ‘s good name or reputation is harmed or ruined, this person can sued for defamation. Defamation can be defined as an untrue statement that can seriously influence someone ‘s personal, trade or business reputation, however dead person can’t be defamed.
This legislation was made to protect these interests, which are highly priced but intangible.
Both parliament and courts make defamation. It can be either called defamation legislation or defamation judge made law. As a complex it comes under the civil law and goes hand by hand with other torts, which are negligence, public and private nuisance, trespass to person, land and good, breach of statutory duty and deceit.
Defamation is a very complex tort, which went over a huge frustrating process of change over the last century. It reached the national audience with coming of media, especially television and radio. The early codification was made by Chief Justice of Queens land, Sir Samuel Griffith who was responsible for legislation in 1889 and 1899. Finally in1992 New South Wales, Queens land followed by Western Australia adapted “ similar” Defamation law, which is still not satisfactory in Australia. What is harmless in one country may attract liability in other state. This is why the states and Commonwealth are attempting to introduce “ uniform” defamation legislation which would apply everywhere in Australia.
Defamation can be classified in two ways. If is the defamation in form of writing, e.g. letter, caricature, cartoon, film, newspaper or book, there is a permanent damage, we call this a Libel.
In Western Australia is actionable per se-plaintiff doesn’t have to prove any damages or amount of suffering. In our case Chuck Chuckles (25) could sue for Libel only in case of Criminal Investigation Journal (Chuck Chuckles v. Criminal Investigation Journal), besides he has to prove all 3 elements of defamation, which we will be analyzed in next paragraph, this is the only case where was the defamation permanent and in form of writing (Journal), so Libel can be potentially considered. The other type of defamation is referred to a Slander. Slander has temporary or non-permanent form and the actual amount of damages and loss has to be proved e.g. verbal statement or body signal.
Chuck Chuckles has to prove actual loss or pain if he attempting to sue Don or Bob Blabbermouth, because Don told Chief Administrator that Chuck had a long criminal record involving assault in the recent past. If he Chuck can prove this statement and 3 elements are satisfied we have clear evidence of Slander.
This applies to Bob as well, because he raised the issue inside the parliament as well as outside at an academic conference of crime.
The biggest concern with defamation delegation is to distinguish it from demand of free speech.” One is probably the most dearly prized attribute of civilized man, the other the very foundation of a democratic community”. (Fleming J. G., The law of Torts, Eight edition, p.524)
This is why defamation always plays a prominent role in public affairs as well as political combats.
Once person decides to sue for defamation, has to decide if it is slander or libel. Next and most important step is to prove the defamation, this means to prove all three elements of defamation.
At first has to be proved that the material is defamatory. Three issues have to be considered. At the first place who may be defamed?
Any living person can be defamed however even dead person’s relatives can be deformed. Livingston- Thomas v. Assoc. Newspaper (1969) 90 W.N. (Pt 1) (N.S.W) 223 at 235. This case talks about calling someone ‘s dead mother being a whore.
It is a statement that lowers the plaintiff by making his followers thinking less of this person or his business, trade or professional conduct. It has two stages:
The judge has to decide if the statement is defamatory according to it’s ordinary and natural meaning and secondly the jury have to decide if it was defamatory in these circumstances. It doesn’t have to be necessary any moral blame to the plaintiff, its enough if the person’s reputation of honor, honesty or integrity is ruined. Morgen v. Lingen (1863) 8 LT 800 In this case someone said about person “she is insane” and was hold liable, or if someone says “ she has been raped” Youssaoupoff v. Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 (CA).
The statement has to refer to or identify the plaintiff.
The jury has to decide if it’s reasonable to conclude that the material refers to the plaintiff, it doesn’t have to have necessary plaintiff’s full name in it. The question is if the ordinary person can recognize that the statement refers to the person. If so, second element is satisfied.
It has to be communicated to a third party. The last element is what we call publication. Plaintiff can only sue if someone else then himself is acknowledged about the statement, every person that hears the statement, or every copy with the statement is treated separately. If number of copies is low or not many people have the specific knowledge to understand the case, can decrease the defamation level. So we are looking on the quantity of publication.
To refer this to our case Chuck can prove all tree elements in case of Don, at the first place material was defamatory because Chuck claims the accusations that he has had a long criminal record involving assault in the recent past and armed robbery as a teenager are totally untrue. The material definitely refers to Chuck, because there is no other Chuck Chuckles aged 25 working in the General Hospital. And finally third party communicated it when Don told the Chief Administrator.
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.
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 -