Privacy and Media Law

Issue

Can the court grant the order to Smith in regards to his plea of disclosing the identity of the people who spoke against him in the Daily Telegraph article?

Rule

Defamation Act 2005 (Vic)

Common law

Precedents

Application

Till 2006, there was no defamation law in Victoria. It was adjudged on the basis of the common law. However, on 1st January 2006, the legislature of Victoria passes the Defamation act 2006. Since that day both common law and the legislature act is applied in the jurisdiction of Victoria.

The act constitutes what is defamation, only if it has the 3 elements of defamation enclosed in it.

  1. A defamatory matter
  2. Publication of the matter
  3. Of or it concerns the plaintiff

What is not essential to prove a suit is defamatory or not is-

  1. Proof of the falsity meaning the truth itself is going to negate the charges. Hence it is not essential that the plaintiff pleads or provide evidence in regards to the falsity of the claim
  2. Proof of actual harm or loss, meaning, that the actions of the defendant had caused loss or harm to the plaintiff. In a defamation suit, it is pretty obvious that it must have caused harm to the plaintiff.
  3. Proof of intent of defames meaning that the defendant had just released such statement to defame the plaintiff.

As per section 4 of the above act, it is essential that the matter of defamation must be written, broadcasted by any electronic means, or by any picture, gesture or oral utterance it could be proved that, that is defamatory for the plaintiff. Imputation is a necessary part of defamation. It means that the words, images or anything used to broadcast any statement must be defamatory. A plaintiff can derive a variety of meanings from one word or one image. It is the responsibility of the defendant to contradict that. Imputation could be expressly stated meaning any plain or ordinary meaning or reasonably what could be inferred from the text.

In a very famous case of Geoffrey Rush v The Daily Telegraph (2020), the daily telegraph newspaper lost the appeal against the defamation decision that was given in the favour of Geoffrey Rush at almost A$3million. In 2019, he sued the Nationwide News, a publisher of the Daily Telegraph for releasing an article that he inappropriately behaved with an unnamed fellow actor. Later this actor was recognised as Eryn Jean Norvill who gave evidence of the claim. After much adieu, it was held that there is no conclusive evidence to prove that Rush behaved inappropriately with Norvill and hence was granted a compensation of $3 million.

Anonymity in the online world is quite prevalent now. Many of the users post such derogatory comments against the plaintiffs, that it is seen as a problem for the plaintiffs to file the suit against the defendant since they are oblivious who shall it be. Therefore in February 2020, the Federal court of Melbourne, ruled that Google needs to release the identity of the anonymous online reviewer known as CBsm 23 to help the Melbourne dentist to bring defamation suit gaianst that particular individual. The dentist has suffered defamation against the derogatory review of that person who had also affected his teeth whitening business. CBsm 23 posted to ‘stay away’ from the business as it is ‘extremely awkward and uncomfortable.’[1]

Conclusion

In the given case a derogatory statement was published against Smith in Daily Newspaper regarding of lack of performance that leads to many elderly patients in nursing homes to die due to the current pandemic. The statement was given to the newspaper by an anonymous person who is said to be someone who stays close to the Minister. Hence for commencing the defamation suit against Daily Paper, he asked the paper to release the identity of the person as well. So as per the able stated Google case, the Daily Paper can be ordered by the Federal Court to give away the identity of the person who gave such of the information to the newspaper as before that there could be no credibility on the statement which was released by the newspaper. It could be their own opinion which they thrust upon one of the officials of Minister. To proceed with the defamation suit, the court shall need to know the viewpoint of this anonymous person that what he said against the Minister is true or not. If true, then there can be no defamation suit instilled by the Minister. Hence, it becomes necessary for the Daily Paper to release the identity of its source and the court is authorised to order so.

Issue

Can the Chinese Australians sue the Weekly Paper except for defamation?

What possible defences can the Paper claim?

Rule

Racial and Religious Tolerance Act 2001 (RRTA) (Vic)

Precedents

Application

The above act condemns any public conduct that could instigate public hatred, serious contempt for, or ridicule any person or group of persons, based on race as per section 7 of the act, and religious belief or any activity as per section 8 of the act. This conduct also encapsulated the criminal offence mentioned under section 24 and 25 of the act.

The essential elements are-

  1. There must be public conduct
  2. There must be an incitation
  3. Must target any race or religion.

Public conduct means there must be published through the internet or email. In general, it means that the public must be informed of such a statement. It is similar to the publication requirement of defamation, that at least one the person must be made aware of such conduct. Any presenter, broadcaster or publisher comes within the ambit of such public conduct. If any online person is not able to bring down such on-line material, then he shall be regarded as an on-going breach by such of a person who is eligible enough to have control over such website. 

Incitation means that any instigation from the people against that particular individual or group of individuals. Judiciary has howevr demarcated that any person who is merely expressing hatred, that is not incitation but nay speech that causes people to experience that hate, that is incitation. It is based on facts of the case to decide what can be constituted as incitation. In Kazac v Fairfax (2000, NSWADT), an opinion based article was published in Financial Times. It was related to the Middle East politics which indicted the Palestinians of hypocrisy, dishonesty and viciousness. It was seen that such statements had incited hatred and vicious contempt for Palestinians. There could not be any defence regarding the fact that it was an opinion based article. In Trad v Jones (2009, NSWADT), a radio jockey alleged that the 'Lebanese Muslims' especially the young males are rapists and contempt to Australia. They are criminals and enemies to Australian society. It was held that such of a statement vilified the Lebanese Muslims and especially the Lebanese males.

Race means a person of any nationality or national orgin, or ethnic origin or of a certain ethnicity as per section 3 of the act. The race is generally identified based on the matter of self-identification. It means if that certain sect of people has their own distinct language, custom, place of origin and religion, they shall be casted to be of a different race. Like Sikhs has been recognized to be of a different ethnic group and not of a different religion and also not of any distinct race in Australia. Jewish has been recognised to be of a different ethnic group and not of any religion. As per the RRTA act, the distinction is not essential as the act is applicable to both race and religion. Religion is not defined in the act but it prohibits incitement on the grounds of religious belief or any activity. 

In Catch The Fire Ministries v Islamic Council of Victoria (Vic Supreme Court, 2006), statements ere made by a Christian minister against the Muslims. He stated that Koran, Muslims promotes violence. These Muslims want to take over Australia and wants to convert those who are not or force them to leave the country. This was made at the seminar which was later published in a newspaper and on websites. VCAT held that such statements were hostile and derogatory for the Muslims. There is a possibility that it could have incited others to religious hatred and contempt. The matter went to the Court of Appeal wherein it was pleaded by the defendant that the event was a seminar was an entertainment event. The court allowed the appeal stating that the prohibition is on the words that could possibly incite the others and not that could insult or offend. The court took the defence of genuine religious purpose. It stated that VCAT placed a lot of emphasis on the truth of the statements and not whether the statements were balanced or not. Hence it was held that the intention of the speaker is not relevant but what is relevant or matters is what kind of audience is present there to whom such of the statement is been said to. The facts of the case must be seen objectively to deicide that can such of the statements could incite hatred based on such people or hurt the religious belief of the people.

Conclusion

The Chinese Australians who want to implicate actions against the Weekly Paper, except the defamation, can impose vilification charges against the paper. The RRTA act of Victoria allows suit against such people or group of people who incite others based on race and religion. The three elements to prove that there has been vilification are-public conduct, incitation and it must be against a certain race or religion. These three elements can be proved in this case where the paper published an article against Chinese Australian (a Public Conduct); there was incitation when it wrote words like, ‘vermin’ and ‘parasites’ and that they should not be allowed to stay, study or work in Australia (An Incitation); and third they do belong to a different race. Hence they are liable to implicate proceeding against the paper for vilification.

The possible defence that could be taken by Weekly Paper is enshrined under section 11 which states that if the conduct of the defendant is done in good faith and in course of genuine academic, artistic, religious or scientific purpose; or that if the conduct is in the public interest; or if the report is fair and accurate and is based on evidence. In total it means, that if the conduct of the defendant is 'reasonable' meaning that it is rationally connected to a protected activity and based objectively on the facts of the case; done in 'good faith' focusing on the honest belief in the truth of the statements, no malice against that person or group of persons and objective assessment of the risk and harm.

Before 2001, Australia did not recognize the common right law on privacy. The legislature was dependant on a high court decision of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937). However, in another case of High Court in Lenah Game Meats held that the decision of Victoria park stands no way in between regarding the development of privacy laws in Australia. It is an open question of law that what shall be constituted to be elements of action or whether such cause of action must be left to common law in order for it to develop or should there be separate legislation in this regard.

It was after this that Australia adopted the common law of privacy based on famous case laws. In Grosse v Purvis (2003), Skoien SDCJ held that the defendant invaded the privacy of the plaintiff and compensated the plaintiff based on aggravated compensatory damages and exemplary damages. After the Lenah Games Meats held that the Victoria Park case does not make any hurdle in accepting the tort of invasion of privacy, SDCJ took a view which is a 'logical and desirable step' and held that for any invasion of privacy it is essential to impose civil action against such a person.

 He held that to implicate any person based on such action, there has to be-

  1. A willful act by the defendant
  2. The act of the defendant must intrude the privacy or the seclusion f the plaintiff
  3. The conduct of the defendant must be such that under ordinary circumstances it shall be considered to be highly offensive by any prudent person
  4. The conduct of the defendant must be detrimental to the mental conduct of the plaintiff, his physiological state, must have caused emotional harm and any kind of stress. It must also prevent the plaintiff from doing any act which he or she is legally entitled to do so.

In Doe v Australian Broadcasting Corporation (2007) VCC 281, the defendant broadcasted in his afternoon and evening radio news that the identified plaintiff is a victim of sexual assault. He breached section 4(1A) of the Judicial Proceedings Reports Act 1958 (Vic), under which it is an offence to publish information about any victim of a sexual offence. Hampel J in the County Court of Victoria held that not only did the defendant breached the statutory legislation, but the broadcaster and two of its employees also breached the confidence of the plaintiff and invaded her privacy. The defence did appeal against the verdict of county court but since the verdict of 2008, there has been no following proceeding that has conducted against the plea of defence that there was no breach of privacy done on their part.

In Giller v Procopets (2004) VSC 113, it was held that there should be a cause of action if there has been any failure conducted to respect the privacy of the person, but neither the English nor Australian law has recognized any cause of action. This verdict is pending in the Court of Appeal.

Opinion

In my opinion, the common law based on a breach of tort of privacy is not adequately justified. Basing my argument on the above precedents, it can be stated that the common law does not recognize any cause of action if the tort of privacy has been breached. In Doe case, the appeal of the defendant is still pending as they do not agree with the County Court's verdict that they breached the tort of privacy and it has been pending since 2008, nearly more than 12 years. This shows that the civil breach of conduct is not paid any importance in Australia. The major lacuna in this is that it is not based under any codified law like other codified acts of Australia. Codification of law hence becomes very essential in any democratic setup as it ensures speedy justice and appropriate kind of damages. Justices have now and again complained that there is no cause of action for this tort which results in prolonged proceedings and unnecessarily aggravates the pain of the victim.

Therefore, in my opinion, the tort of privacy is not adequately protected under common law and hence there is a need of statutory legislation that could entail what shall be constituted as an invasion of privacy, what shall be the minimum and maximum damages for the defaulters, what shall be the damages for repeat defaulters along with any imprisonment charges.

Part 2-1 of the Australian Consumer Law (ACL) prohibits any person, especially in trade and commerce, to not to engage in any conduct that could be misleading or deceptive or is likely to mislead. This practice enhances the customer experience and consumer well-being and his confidence in the concerned market. This conduct entails the business to consumer good or service and business to business goods and services. Misleading or deceptiveness is nowhere defined in the act but it is to be interpreted in its ordinary sense.

Part 3-1, division 1, prohibits a person who is engaged in trade and commerce to not make any false or misleading representations about the supply of goods or services or possible supply of goods or services. The types which shall be considered to be false and misleading are quality, standard, style, price of the goods and services and any sponsorship or approval, as per section 29 of ACL. Part 2, division 2, sub-division D of the ASIC act entails the same features in regards to financial services. This false or misleading statement could be verbal or in writing like advertisements or as implied from a person's conduct. Representations like gifts and prizes, bait advertisements and wrongful payments etc count as misleading and false. 

As per section 224 of the ACL, which enlist all of the financial penalties on falling under such category. It could be $1.1 million for a company and $220000 for an individual. The court can also order an injunction on companies and individuals to avoid any future implications, whatsoever.

In April 2015, the federal court imposed a penalty on Coles Supermarkets Australia Pty Ltd (Coles) of $2.5 million for false and misleading advertisements. The proceeding was bought by ACCC wherein it was found that the Coles shall promote its product as ‘baked today and sold today,’ and sometimes as ‘freshly baked in-store.’ It was found that the company baked partially and rest it gets it stored by a supplier in cold-stores. It is then transported and finished at in-store bakeries within coles market. Hence in 2014, it was held using phrases like baked today and sold today beings this ideology in minds of the people that its products are freshly baked every day and sold every day. However, this was not the case. Hence apart from financial penalty, Coles was ordered to not make any representations on packaging, signage, website or anywhere else that the loaves of bread were baked every day on the day of sale or baked from fresh dough, for at least a period of 3 years and to post a corrective notice on its site and in-stores.

Opinion

So to conclude, yes it would not be wrong to conclude that the respective provision in ACL regarding misleading and false advertisements did provide protections to consumers. It is essential that consumers are aware of their rights and hence they are able to impose questions if they find anything inconsistent in the acts of the traders. The Australian Consumer and Competition Commission is famous for its rigorous acts in order to free Australia from fraudulent and unethical practices of traders of which consumers have been a victim for long.

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