Legal Studies - Inquiry task
A) Elements of the defamation tort that must be satisfied for a successful action to take place, and the defences for it.
For a successful action of defamation to take place, regardless of whether its slander (spoken) or libel (written), three main points must be proven by the prosecution:
1. The material was defamatory
2. The material can be reasonably taken as referring to the plaintiff
3. The publication of the defamatory material has taken place
Within each of these points there are sub-points that need to be proven. To prove the material was defamatory, the defendant must prove that the material will either injure the plaintiff's reputation, injured the plaintiff's trade or profession or cause other people to avoid, ridicule or despise the plaintiff.
The defamatory material can be taken as referring to the plaintiff even if the plaintiff isn't named, so long as an ordinary and reasonable person would assume that the matter is referring to the plaintiff.
The defendant can still have action held against him even he didn't mean to defame the plaintiff, in other words, accidentally. And finally, if it is a group in question, the plaintiff must be able to prove that all members of the group were involved in the defamation.
Speaking, making signs or communicating in any way to someone other than the plaintiff about the material is considered publishing the defamatory material.
There are several defences to the defamatory claim. These are:
1. The material is both true and to the public benefit.
2. Absolute or qualified protection (unless malice or spite was the motive for the alleged defamation).
3. The material is a fair report.
4. The defamatory material is innocently sold (the seller didn't realise that the material was in there)
5. The material was an honest, fair comment, not motivated by malice or spite.
6. The material was trivial, so that the plaintiff suffered very little damage or injury.
Usually the plaintiff will ask for money to compensate for damages, an injunction to stop publication of the material or both.
B/C) The positive and negative features of the defamation law as it stands in Australia, its effectiveness and what we should do to make it more so.
The defamation law in Australia isn't perfect. Granted, it greatly limits the amount of slander and libel thrown around on the private and industrial level, and in addition contributes to a fairer society, but there are many faults with the defamatory system and the process a plaintiff has to go through for successful action to take place.
Firstly, cost. The cost of a defamatory law suit, whether you are the defendant or plaintiff, can be up to tens of thousands of dollars, purely in fees. On top of this, if the defendant is judged innocent, the plaintiff has wasted thousands of dollars. Because of this, defamatory action very rarely takes place. No one wants to risk their money on a law suit that could turn against them. In addition, the guy with the more money is likely to win, as the cost of legal advice, lawyers etc... is very large, therefore the cost of defamation greatly limits the effectiveness for individuals who aren't especially wealthy. As a result, "defamation is generally used by the rich and powerful to deter criticism". One great example of the cost involved in a defamation suit is John Marsden's law suit against the channel seven network. Quote from http://www.abc.net.au/7.30/s154345.htm:
"John Marsden's defamation action against Channel Seven has been groundbreaking -- 190 hearing days so far, costs estimated at more than $10 million".
If we want the legal system to be more effective, we must make sure that the defamation process doesn't cost that much money. Maybe the legal system can specialise lawyers in defamation that are prepared to work for less money than a lawyer who handles, for example, a murder case.
Secondly, it's not a free country. A lot of material is cut from movie scripts, novels etc... because the author is afraid of losing a case of defamation, even though very few cases are actually followed up. One example is this one taken from http://www.uow.edu.au/arts/sts/bmartin/dissent/documents/defamation.html
"Sir Robert Askin was Premier of the state of New South Wales for a decade beginning in 1965. It was widely rumoured that he was involved with corrupt police and organised crime, collecting vast amounts of money through bribes. But this was never dealt with openly because media outlets knew he would sue for defamation. Immediately after Askin died in 1981, the National Times ran a front-page story entitled "Askin: friend to organised crime." It was safe to publish the story because, in Australia, dead people cannot sue. (In some countries families of the dead can sue.)"
This isn't helped by some major defamatory material being ignored, yet some tiny comments against an individual being taken up ruthlessly. Free speech is also limited by the complexity of the law. As most authors or writers don't thoroughly understand the defamation law, a lot of speech that is in fact safe is cut out for fear of being accused.
There are practical difficulties in a defamation case as well. Proving that the material was directed at a specific person without it being named is quite a hard task, as well as proving (for the defence) that the damages to the plaintiff are or would be trivial. Who is to define what is trivial without a legal guide? I suggest that a certain minimum loss of finance or potential loss of business should be set for the case to be defined as non trivial. This makes the law simpler and easier to follow, and lets the judge decide more easily on what sentence or judgement to pass.
Unfortunately, as most law suits in Australia, the defamation claim will not be followed up for years after the complaint is filed. By then, it is likely that the case is followed up too late and any defamation has already caused a lot of irreversible damage. In addition, cases can take years to resolve, taking up a lot of the plaintiff's and defendant's time. Perhaps they should construct a smaller, less significant court, and have it purely devoted to tort cases with the relevant officials involved. This ensures a more efficient, yet less expensive court process, and is likely to render the Defamation tort as a much more successful law.
1. Kerry Obrien (August, 2000) Defamation case has ruined my life and reputation: Marsden. Available from http://www.abc.net.au/7.30/s154345.htm (02/07/04)
2. Legal Text Book.
3. Brian Martin (November, 1996) Defamation Law and Free Speech. Woolongong: Whistleblowers Australia. Available from www.uow.edu.au/arts/sts/bmartin/dissent/documents/defamation.html (02/07/04)