UNIVERSITY OF SOUTH AUSTRALIA
MEDIA LAW - 2007
Why a law of defamation?
Every member of society has an interest in retaining his or her personal reputation and standing. All members of the community also have an interest in a free flow of information and communication. There is a tension between these two interests.
The law represents a balance between personal interests in reputation on one hand and community interests in free speech and an uninhibited flow of information and opinions on the other.
The law of defamation in Australia has, until recently, lacked uniformity. Given the advances in technology and the growth of national publications, the pressure for uniformity gained such momentum that, after many years, uniform defamation legislation has been introduced in each state and territory. Whilst the legislation is still not entirely uniform, there is much more consistency between the various Australian jurisdictions than had existed beforehand.
South Australia introduced the Defamation Act 2005 (SA) which commenced on 1 January 2006.
The new Acts do not affect the operation of the general law in relation to the tort of defamation except to the extent that the Acts provide otherwise (whether expressly or by necessary implication): Defamation Act 2006 (SA) section 6.
It is important to ensure that facts are correct prior to publication. Often it is the manner in which material is written, as opposed to its subject matter, which causes difficulties. Knowledge of the law of defamation will assist in framing material appropriately and avoiding claims. If in doubt journalists should consult more senior staff or seek legal advice. Prevention of problems is cheaper (and better for career advancement) than cure.
What is defamatory?
There is no uniformly accepted definition. Basically, a publication is defamatory if it causes the injured party's reputation to be lowered in the eyes of ordinary members of the community, or causes them to be shunned, avoided or brought into ridicule.
It is not enough that the matter injures a persons feelings or causes annoyance. Nor does the fact something is wrong necessarily mean it is defamatory.
Note that the standard of opinion is that of ordinary or right thinking people generally. So, in Mawe v Piggott (1869) I.R.4 C.L. 54, the Court rejected a claim by an Irish Priest suing for words charging him with being an informer against a certain class of Irish criminals. The priest argued that, amongst criminals or those who sympathised with crime, it would expose a person to great odium to represent him as an informer. The Court said that those circumstances which might make a person be regarded with disfavour by the criminal classes would raise their character in the estimation of right thinking persons. Similarly, in Byrne v Deane  1 KB 818, the Court of Appeal ruled that to say of a man that he had put in motion the proper machinery for suppressing crime could not on the face of it be defamatory.
Plaintiffs must prove that the publication complained of was of and concerning them. In this context, it is not how the words were intended but how they would reasonably be understood: E Hulton & Co v Jones  AC 20. In that case the Sunday Chronicle published a piece of fiction referring to 'Artemus Jones with a woman who is not his wife, who must be, you know - the other thing!' A real Artemus Jones succeeded in a defamation claim. Similarly, in Lee v Wilson and MacKinnon (1934) 51 CLR 276, a newspaper misreported evidence at a police inquiry. A prisoner had given evidence about a 'First Constable Lee of the Motor Registration Branch' having been involved in handing money on from the prisoner to a Detective. The paper referred to 'Detective Lee'. There were 3 detectives named Lee in the Police Force. Two...
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