TORT OF DEFAMATION IN CONTEXT OTHER ACTIONS PROTECTION REPUTATION & OTHER OVERLAPPING INTERESTS

Transcription

1 TORT OF DEFAMATION IN CONTEXT OTHER ACTIONS PROTECTION REPUTATION & OTHER OVERLAPPING INTERESTS What causes of action can arise concurrently? Defamation is a tort that is principally concerned with protection of reputation But, other causes of action may also protect reputation directly/indirectly, or protect aspects of reputation Foaminol Laboratories v British Artid Plastics Facts Damage to reputation tried to address this as a breach of k claim Issue Principle Could the claim be amended to include a claim for breach of k to allow consequential damages for damage to reputation? No In the ordinary course of events, where a claim is for a mere loss of reputation, the proper cause of action is in defamation INJURIOUS FALSEHOOD Elements (to be proven by P): Palmer Bruyn v Parsons (Gummow) 1 False statement by D about P s goods/services 2 Publication of that false statement to a person other than P 3 Malice (improper motive) on the part of D Trying to infer the state of mind of D That D was actuated by an improper motive in making the statement This needs to be a dominant motive 4 Actual damage as a result of D s false statement Palmer Bruyn v Parsons Facts M engaged a surveyor (P) in preparation for opening a new store and seeking council approval D was a council member and sent out a false statement (detrimental to P) to other councillors in a meeting Media found out about this statement and published it M terminated k due to the messiness of the situation (on grounds other than the publication) 1. False statement 2. Published to persons other than P 3. There was arguably malice 4. May have been actual damage due to cancellation of k

2 But, is the cancellation of k (damage done) a natural and probable consequence of the circulation of the document in the council (wrong done/tort)? No Even though there was a wrong and damage, there was no causal connection between them There was no damage resulting from a natural and probable consequence of the publication to the other council members, as M s cancellation of k did not result from D s circulation of the statement in the council meeting Principle Must have an economic interest in goods/services Fault-based tort (intentional tort) Need causal connection between D s wrongful conduct + harm suffered by P Extent of causal responsibility for: Negligence liable for all loss that is reasonably foreseeable Intentional tort liable for natural/probable consequences of conduct Defamation + injurious falsehood can be concurrently pleaded: Injurious falsehood Protection of economic interest/goodwill in goods/services Defamation Protection of reputation False statement about P s goods/services Greater forensic burden on P, as damage is not presumed (P must prove damage) Easier to obtain an injunction to restrain an apprehended injurious falsehood (as this tort does not protect freedom of speech) False statement + disparages P s reputation Forensically easy for P, as presumption that material is false + P s reputation has been damaged (if P proves the publication of a matter that is defamatory of him) Difficult to obtain an injunction if P suspects that D will defame him Court generally allows D to say what he wishes (freedom of speech), then P sues for damages after publication Ajinomoto Sweeteners v Asda Stores Facts D promoted its product by stating no hidden nasties, no artificial colours, no Spartan (artificial sweetener) P (produced Spartan), sued for injurious falsehood What do those words mean? Words were directed towards goods, as P manufactured Spartan Words implied that P s goods were harmful, or potentially harmful, or something to be avoided (different imputations/meanings) Issue Does single meaning rule apply in injurious falsehood (as in defamation)? No 2/8

3 Principle The single meaning rule is an artificial aspect of defamation law (even in defamation law, no one really wants it) No reason to import the single meaning rule into injurious falsehood Can impose liability on basis of multiple reasonably available meanings N.B. Must be a single meaning in defamation: Words used, even though they may be understood in different ways by different people, are only capable of bearing a single meaning 3 different meanings from words here (can only mean one thing). What is the one true meaning of the words? Liability is imposed on that basis Menulog v TCN Channel Nine Facts T wanted to broadcast a story which suggested that people ordered from a mid-tier restaurant on M, but M sourced the food from a cheaper restaurant and pocketed the difference M contacted T (said it was C s (previous operator of the restaurant) fault) T did not change its position M sought an injunction to prevent the broadcast (M used injurious falsehood to get an injunction instead of defamation) Issue Can an injunction be granted on the grounds of injurious falsehood? Yes Injunction requires a prima facie case on the balance of convenience? Yes [1] Yes, prima facie case that there is A false statement about P s services Publication to persons other than P (D going hard on promotion) Malice (D was aware of P s view but did not investigate further) Special damage in the sense of actual pecuniary losses (no actual damage needs to be proved at the injunction stage, but there is a risk of loss of customers and actual damage would be probable) [2] Balance of convenience (injustice in granting vs. not granting injunction) Injustice = D cannot broadcast the story, impacts freedom of speech, but can investigate further Balance of convenience in favour of P (harm suffered by P is greater than that of D, if the story is broadcasted) Mahon v Mach 1 Financial Services Prefers the test of actual damage (rather than special damage) Do not need to plead and prove actual pecuniary losses Sufficient to point to economic harms likely to result if the matter is published 3/8

4 DHR v Challis Recent example where corporation sued in injurious falsehood against a private individual (internet publication) where the corporation might have previously sued in defamation Rationale for restricting corporations from being able to sue for defamation was that they could use the threat of defamation to chill speech But, forcing corps to rely on injurious falsehood means can stop speech altogether The fact that corporations presumptively cannot sue for defamation under DA does not mean they cannot bring a claim in injurious falsehood Orion Pet v RSPCA Facts O manufactured electronic dog collars designed to train dogs not to bark R campaigned to have collars banned in Vic (via radio, website, article) Dr H (President of R in Vic) made a range of allegations, many of which were statements of fact, but were overstatements (re voltage strength) O sued R for defamation + injurious falsehood + m/d conduct Claim O s claimed that the representations were made in knowledge that they were untrue and with the intention from discouraging purchasers from acquiring the products and thereby destroying its business No liability for injurious falsehood 1. False statements (re voltage strength) 2. Publication 3. No malice, no improper motive, as R believed the statements were true Defamation False statement which disparages O s reputation O is identified It is published Thus, onus shifts to R to provide a defence (forensic advantage for O/P) R unable to establish any defences, thus damages Principle Malice If D knows that the statements are false/if he is reckless (makes the statement not caring whether it is true/false) If D is actuated by some indirect/dishonest/improper motive No malice If false publication made w/ mere lack of care/honest belief in its truth (Carelessness is not equivalent to recklessness) 4/8

5 Examples of statements amounting to injurious falsehood: False assertion that: P s products were inferior; P s employees were engaged in immoral conduct; P s employees had an infectious disease; P has ceased to trade; P s house was haunted; P was not available for future employment; The vendor of goods/land was not the true owner of the goods/land; P was complicit in the theft of goods, overcharged and managed its business incompetently; and P was engaged in fraud and conspiracy, was negligent, contravened relevant legislation and perverted the course of justice MISLEADING/DECEPTIVE CONDUCT & DEFAMATION ( OVERLAP ISSUE ) s 28 Fair Trading Act ACL applies as part of the law of NSW s 32 Fair Trading Act ACL applies to corporations + persons engaging in misleading/deceptive conduct in NSW s 131 Competition and Consumer Act Application of ACL in relation to corporations s 18 ACL (replaced s 52 TPA) A person must not, in trade/commerce, engage in conduct that is misleading/deceptive, or is likely to mislead/deceive ss 232, 236 ACL Remedies (damages, injunctions) Global Sportsman v Mirror Newspapers Facts Cricketer (K) entered agreement with G to do promotional activities M, unaware of this agreement, published matter that implicated K in the factionalism and mutiny said to be afflicting Australian cricket at the time G sued for misleading/deceptive conduct K sued for defamation Issue Claims Can M read down s 18 to exclude defamatory speech? No Statutory interpretation 5/8

6 1. M argued that misleading/deceptive conduct under s 18 ACL only applies to non-defamatory speech (and should be read down to exclude defamatory speech, which is covered by defamation law) 2. Alternatively, M argued that the defences for defamation should be imported into the interpretation and application of ACL (otherwise it would impact freedom of speech and press) This case acknowledges the possibility of overlapping causes of action in misleading/deceptive conduct and defamation [1] s 18 ACL cannot be read down to exclude defamatory speech [Versace] No express words in s 18 that exclude defamatory speech No necessary implication (looking at the words and what they reasonably mean) that misleading/deceptive excludes defamatory speech (words say nothing about defamatory/non-defamatory speech, no textual basis to read it down, not absurd and not ambiguous) [2] Must construe Statute as a whole. If no CL defences in Statute, drafters must have turned minds to it, decided not to import defences to misleading/deceptive conduct, thus cannot import defences for defamation to s 18 Legislature provided cause of action with intention to protect consumers Purpose = consumer protection (cf defamation = reputation) Orion Pet v RSPCA Facts O manufactured electronic dog collars designed to train dogs not to bark R campaigned to have collars banned in Vic (via radio, website, article) Dr H (President of R in Vic) made a range of allegations, many of which were statements of fact, but were overstatements (re voltage strength) O sued R for defamation + injurious falsehood + m/d conduct Principle No liability for misleading/deceptive conduct Likely to mislead/deceive R has a commercial aspect, but the conduct in question is not in the course of trade/commerce, but for the purpose of political advocacy/education Trade/commerce Requires the conduct in question to be in the course of trade/commerce Information provider defence: Unintended consequence of media outlets being held liable for misleading/deceptive conduct (for material published in certain circumstances) w/o any effective defence Broad level of protection (but not an absolute immunity) s 19 ACL (replaced s 65A TPA) 6/8

7 Versace v Monte Facts M (private investigator) self-published a book (promoted on his website) M claimed that he provided personal security services to V and that V was a front for laundering mafia money V sued M for defamation + misleading/deceptive conduct Issue Should M be able to rely upon a defence of being an info provider for the purpose of s 19 ACL (equivalent s 65A TPA)? Is M, in substance, providing info? No It is conduct in trade/commerce (investigation services) It is defamatory + misleading/deceptive, or likely to mislead/deceive M was outside the ambit of s 19 on either analysis, thus unable to rely on defence 1. M was not purporting to provide information, but was using the book to promote his security services. Given that the book was not for the purpose of providing information, M did not fall within the definition of a prescribed information provider 2. Even if M were a prescribed information provider, he falls outside the ambit of this if the misleading/deceptive conduct he engaged in is in relation to the promotion of his own services, as compared to the provision of information Bond v Barry Facts A involved in the Mesotho Diamond Company Shareholders upset with A s purported intention to strip the company of assets to the detriment of the shareholders B wrote a story on a freelance basis detailing the conflict in the company A sued for misleading/deceptive conduct; B claimed defence under s 65A TPA (now s 19 ACL) Issue Claim Does the defence apply to freelance journalists such as B? Yes Argued s 65A did not apply to freelance journalists (only employed journalists) B was an information provider, investigating matter of public interest Principle The defence extends to freelance journalists that were engaging in the ordinary tasks of journalists for an information provider Nothing in the text of the Statue drew a distinction between freelance vs. employed journalists ACCC v Channel Seven Brisbane Facts 2 women formed Widely Wealthy Women which aimed to make women rich in 18 months through property transactions 7/8

8 C had an understanding (no k) with WWW to broadcast 6 stories of women who had been tracked over 18 months (and went from having 0 capital to becoming property millionaires) ACCC pursued WWW and C for contravening TPA Issue Given that ACCC had established that WWW had engaged in misleading/deceptive conduct, could C, by providing WWW with a platform, have engaged in misleading/deceptive conduct itself? Yes Did C have the benefit of defence under s 65A TPA? No C had an arrangement with WWW to promote uncritically WWW s services in return for content This fell outside the ordinary practices of journalism and was thus not covered by the defence (The nature of what had been published exceeded any protection the information provider (C) could have) If C entered into critical reporting of WWW then it would have been within the ordinary practices of journalism Principle The defence does not extend to practices by information providers that fall outside the ordinary practices of journalism Exception where info provider entered k/understanding/arrangement with a provider of goods/services (blends own commercial interests with people they purport to report about) 8/8

9 [B] DEFAMATION: PRELIMINARY ISSUES [1] LIBEL & SLANDER Libel The act of making a false written statement about someone (print, writing, pictures, signs) Slander The act of making a false, negative spoken statement about someone Church courts: Historically, defamation arose from Church Courts, as it was seen as a spiritual crime Punished by excommunication (with Church); refusing people communion Royal courts: Royal courts began to be concerned about the jurisdiction of the Church Courts writs of prohibition were issued (including for defamation claims) As Royal Courts could give award of damages, this cause of action became very popular and the courts needed to limit the number of lawsuits/improve efficiency Star Chamber: Star Chamber developed law of libel arising from control over printing press Statute created criminal offence for derogatory statements (speech/print) re the great men and women of the realm (royal family, bishops, judges etc.) Proof of special damage for slander vs. damage presumed in libel (printed, circulated) Because libel is in a written form (easily circulated), damage should be presumed King Charles II reinstituted licensing system for press political pressure against this occurring (leading to limit of 7 years of licensing) Responsibility for brining certain aspects of defamation law into disrepute Modern Australia: Libel is defined as defamation in a permanent form Slander is defined as defamation in a transient form s 7 DA Distinction between slander vs. libel is abolished (now only talk about defamation) Publication of defamatory matter of any kind is actionable w/o proof of special damage (damage to reputation is presumed) (Slander is actionable without (proof of) special damage in the same way and to the same extent as libel is actionable without (proof of) special damage) What is the effect of this (e.g. trivial defamation claims)? UK preserves the distinction between libel and slander s 206 Broadcasting Services Act For the purposes of defamation law, the broadcasting of matter is taken to be publication of the matter in a permanent form (as being a libel, damage to reputation is presumed)

10 [2] CRIMINAL DEFAMATION In Australia, every jurisdiction still has a criminal defamation provision s 529 Crimes Act (3) Offence of criminal defamation a person who, w/o lawful excuse, publishes matter defamatory of another living person (victim): (a) knowing the matter to be false, and (b) with intent to cause serious harm to the victim/any other person, or being reckless as to whether such harm is caused, Is guilty of an offence (4) A defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the victim if, and only if, The defendant would, having regard only to the circumstances happening before/at the time of the publication, have had a defence for the publication If the victim had brought civil proceedings for defamation against the defendant (7) Requirement of DPP s written consent to bring proceedings for criminal defamation DPP reluctant to provide consent, Thus people are rarely prosecuted for criminal defamation National, uniform defamation laws: UK defamation law played an important role in shaping Australian defamation law Uniformity is good, but substantive reform of defamation law is still a challenge Is the current law sufficiently adapted to the challenges we currently face? [3] STANDING Who can sue for defamation (Ps in defamation actions)? Natural living persons: All natural living persons have standing to sue for defamation [s 10 DA] CL At death, whether you are a P/D, the cause of action dies with you s 10 DA A person (including a personal representative of a deceased person) cannot assert/continue/enforce a cause of action for defamation in relation to: (a) publication of defamatory matter about a deceased person (whether published before/after his death), or (b) publication of defamatory matter by a person who has died since publishing the matter 2/11

11 Public figure doctrine (NOT in Australia): NY Times v Sullivan (US) Principle If you are a public figure (politician, celebrity etc.)/forced public figure through connection with newsworthiness (e.g. family dies, in the media), and Someone publishes material about you, The forensic burdens act as a disincentive for you to sue N.B. Reversal of onus of proof public figures must prove 1. The statement was false 2. The dominant motive of the publisher is actual malice (D published knowing that the material was false/was recklessly indifferent as to the truth of the material) cf Australian law P does not need to prove the matter was false There is a presumption of falsity D must prove that the matter is true Partnerships: Todd v Swan TV Facts Mr T, Mrs T operated a partnership business Mr T s friend left her husband and lived with Mr T Friend s husband found out, murdered the friend, tried to commit suicide S mistakenly identified the killer as Mr T and the victim as Mrs T The partnership suffered significant loss of business (believing Mrs T was dead and Mr T was in hospital after a suicide attempt) Mr T, Mrs T and the partnership business sue Mr T Imputation that P is a murderer This is false Disparaging (ordinary r reader would think less of P if he murdered wife) Identified Published Succeeds in defamation Mrs T Imputation is that P is dead/(was killed by her husband) This is false But, it is not disparaging of her reputation An ordinary reasonable reader would not think less of her because she is dead/(was killed by her husband) Fails in defamation 3/11

12 Issue Can a partnership have a reputation distinct from person and professional reputations of the constituent partners? Yes Can a partnership have the protection of defamation law (sue S)? Yes Partnership did not have standing to sue Imputations were false, Caused economic harm (downturn in business) But, is it disparaging of the partnership s reputation? No S s statements allege/impute that Mr T murdered his wife/attempted suicide, which are not in the nature of business/trade/commerce Thus, the imputations cannot reflect on the partnership Simply because a thing is false and causes economic loss is not sufficient for it to be defamatory (as the primary interest protected is reputation) It must be false + disparaging of the person/entity s reputation Principle A partnership s reputation is separate and distinct from partners reputation A partnership is business/trading/commercial in nature The defamatory statement/imputations made against the partnership must reflect on the partnership s business/trade/commerce reputation If imputations also reflect adversely upon the partners personal reputations It can lead to personal lawsuits for the damage done to their reputations and the injury to their feelings If the imputations only reflect upon the personal reputations of the individual partners, but not the partnership itself (as in this case), Only those personally affected partners may sue for defamation Allegations made against a partnership may also reflect on personal/professional reputations of the constituent partners, even if they are not named, subject to the requirements (proof) of identification If it is alleged that the partnership is a front for money laundering But the constituent partners are not named The partners can sue for defamation, if they can prove identification The partners must prove that the people who read it knew the partners were behind the partnership (disparaging in the eyes of those people) What imputations can reflect on both the business/trading/commercial reputation of the partnership + personal reputation of the partners? Imputation that the business is a front for money laundering by partners Imputation of bribing 4/11