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.
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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