Persons Reputation and Defamation Act 2005 - Essay Example

Number Subject Name Lecturer’s Name Arts Due date Date Submitted FICTIONAL SCENARIO Paragraph 1 Legal issue 1. The statement by Max referring to the treasurer as “a bull terrier” is defamatory. Max volume also makes reference to the friends and the wife of the treasurer. A person’s reputation is protected by the law of defamation which is contained in the Defamation Act 2005 (NSW). The post further mentions the name of the treasurer, it is clear that he intends to talk about Joe the treasurer and not any other person. The imputation on someone’s reputation that has an effect of ruining that person’s reputation or injuring their business or profession is guilty of an offence (Defamation Act, 2005). There is also publication of the defamatory statements both online and on print. This completes the elements of defamation since the statements themselves are enough to cause damage to the person’s reputation. The question that one should ask is whether the publication is capable of ruining the image by the standards of an average person. Defences exist which Max may use to defend himself. Such include the truth. If the statements made are true then defamation does not suffice. This would however require the person alleging the truth to give substantial evidence that the information provided is indeed consistent with the truth. Another defence that may be raised is that the comments were of honest opinion. This defence requires one relying on it to show that the statements were of an opinion rather than statements of fact. The defence of public interest can also be used. If Max can show that it was necessary to publish the information for the benefit of the public then it would amount to a good defence against defamation charges. The journalists are expected to act in a reasonable way. They should ensure that their actions do not ruin other persons’ name. The standard of measurement as to what could amount to a defamatory statement can be found in the case of Obeid v John Fairfax Publications Pty Limited (2006). Max is therefore liable for defamation unless he can plead any of the defences stated above. Joe may take this issue to court and sue for damages. 2. The person commenting on the post online further replicates the defamatory statement. This also amounts to defamation and is actionable before a court of law. The only problem here would be getting the identity of the person commenting. The statements as stated earlier are defamatory and by commenting, they were also publicised and therefore qualifies to constitute defamation under the Defamation Act. The reason as to why it qualifies is because the statement itself is defamatory. It is further publicised. This is all a defamation action requires. It can never be a defence that the person was merely replicating information as stated by another person. The reason is because by posting that comment, the person publicised the defamatory statements further. The person also goes ahead and mention Joes’ name. There can be no doubt about whether defamation exists here since all the requirements of defamation are present in the comment that has been posted. The person who posted the comment can be sued for defamation, since it may be hard to get the true identity, the newspaper should also be sued since it allows for unauthenticated identities to be used in commenting in website. The defences of honest opinion and fair comment may also be used in this case. Ethical issues 1. According to media ethics, one is supposed to respect other people’s privacy including those they publish stories about (Little J, 2013). Family members should not be involved or their information regarding them exposed. Commenting about the wife is therefore irresponsible and a breach of the media ethics. It is the responsibility of the journalists to ensure that they respect that the individuals’ privacy is to be respected and protected. General Principal 4 by Australian Press Council emphasises this aspect. The journalist must be sensible. The mention of the wife and friends is highly inappropriate. The only exception where private matters may be published is when they are a matter of public record. It is expected that such matters are known to the general public and therefore reporting them would not be an infringement of privacy. 2. It is unethical to publish information under a false name. The comment left has been signed under a wrong name. Paragraph 2 Legal issues 1. The company publishes information capable of injuring the reputation of the treasurer and further accompanies it with a photo. This amounts to defamation as provided for under the Defamations Act 2005 (NSW). The information given is misleading which is against the law. There are regulations against the publishing of misleading information be news groups and also individuals on the internet for the purposes of promoting themselves. The statements made by Instant news are misleading. The Australian Competition & Consumer laws are strict and do not allow for persons to post any misleading information for promotion purposes online. If such happens the commission may in its own name institute a suit against any such person. It may further ask that the claims posted be substantiated. This is in an effort to hold media houses and persons posting information online accountable. 2. Published information is subject to copyright laws (Patricia Aufderheide et al, 2012). The newspaper uses information from another source without recognising the source. The newspaper is therefore in breach of copyright laws. Infringement of copyright laws is actionable in a court of law (Copyright Act, 1968(NSW) S. 132). Journalists are supposed to be cautious. The best way is to seek for permission to use the information or acknowledge the source of the information. So long as that a substantial part of the work has been copied, copyright would have been infringed. The fact that a different heading may have been used for the story does not mean that copyright has not been infringed (Copyright Act, 1968(NSW) S 14). The newspaper is liable to give out the profits that may have accrued from the sale of the story and may also be subject to damages. Sufficient acknowledgement is required for reproduction for the purposes of news; this is provided for under section 41 of the Copyright Act, 1968. 3. The newspaper further includes an audio recording which it states is a secret recording. In law, one is not supposed to record persons without their consent. Such recordings therefore amount to a breach of privacy laws (Surveillance Devices Act 1999). Section 11 provides that conversations which are private are prohibited from being publicised. The recording therefore posted online contrary to this section. Warrants are required before recording can be allowed. However, public interest may cause information that amounts to private conversation to be publicised. The information must however be approved as a matter of public interest before it can be allowed for publication. The recording itself is not allowed. There is prohibition against surveillance recording of private matters. Listen or recording devices are not permitted unless with a warrant. This is provided under section 9B. This Act provides for criminal offences that arise from non-compliance with its provisions. Corporation as well as individuals could face fines. The Newspaper is therefore in breach of the Surveillance Act and may be liable to pay fines. The only instance where it may be allowed to go scot free is when it can be proved that the matter had first certified as one of public interest. Another instance would be if the newspaper had acquired a warrant to record the conversation and has permission to broadcast such information. Ethical issues Information published by the newspaper is private in nature. This goes against the principles set out by the Press Council (Australian Press Council, 2014, principle 1). Private information of that nature can only be published if it is of public interest. The burden is upon the newspaper to prove that indeed the information so conveyed is of public interest. Further, the use of a secret recording is against principle 5. This principle prohibits the publication of information obtained by dubious means, such is the recording. Such a recording can only be uploaded where there is overriding public interest. The issue that is of public interest would be one that touches on a huge number of persons and that which the public has a right to know of its proceeding. It is therefore hard to prove that the information the information was uploaded for the benefit of the public since it is not something that can be quantified. Paragraph 3 Ethical issue Ethical issues are a matter of acceptable conduct. The interviews sometimes may call for some direct questions to be asked. However, the language must be one that is respectable and one that is sensitive not to injure the reputation of the person being interviewed (Free TV, 2010). The television station asks questions that are not open in nature. The questions connotes that Joe is already guilty and must prove himself as innocent. The judgement has already been made by the journalist interviewing. The journalist are supposed to be fair, impartiality is to be maintained at all times when reporting. Paragraph 4 Ethical issue The question asked by the television anchor is not in line with privacy principles. Privacy of the persons being interviewed should be protected (Australian Press Council, 2014, principle 1). The questions as asked violate the code of conduct. The only instance that this maybe allowed is where there is an issue of public interest (Free TV, 2010). If the newspaper alleges public interest, it must prove that the questions asked were of public interest. Paragraph 5 Legal issues 1. Holy moly’s story constitutes defamation (Defamation Act, 2005). As has been discussed above, they may claim that they were only airing an opinion and not a fact. Further, there was statement was publicised. This would disqualify them from liability since defamation must be of statements of fact. Another defence would be that the information was necessary for public interest. This requires proof of public interest. If Holy Moly can prove that what they published was the truth, then they cannot be held liable for defamation (Daniel Snedden v Nationwide News Pty Ltd, 2011). 2. Before one can use information from another source, they should request for permission to do so. Acknowledging the source is of paramount importance. The website reproduces the questions asked on the interview, which are materials that belong to the television station. The website does not acknowledge the source of their information. This is an infringement of copyright laws (Copyright Act, 1968). Section 41 provides that whenever information is to be reproduced for the purpose of the news then sufficient acknowledgement must be made. Ethical issues 1. The column by the website does not have an author signed under it. This goes against media ethics. They are not supposed to publish information from unknown sources. They are supposed to first investigate the truth of the story before they can allow it to be published on their website (Australian Press Council, 2014). 2. The post is able to receive likes from Wikileaks and other several likes. This shows a reflection of the society, an outcry to have the media express what they feel. Despite there being regulations, it is important that media freedom is observed. Another issue on anonymous source maybe that the website wishes to protect its source by not revealing the name. The media should have the opportunity and the freedom to publish their views (Australian Press Council, 2014). This means that they have a right to publish views so long as they are opinions. Further, according to privacy principles no. 5, journalists have been allowed to protect the anonymity of the persons from who they get information. This therefore means that in instances where the journalist feels that there is need to protect the true identity of the person from whom they get information or where the person giving information seek References Australian Press Council 2014, statement of privacy, press council, Sydney Copyright Act, 1968(NSW) Defamation Act, 2005 (NSW) Daniel Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 http://www.freetv.com.au/content_common/pg-code-of-practice.seo Little J 2013, Journalism ethics and law: stories of media practice, Oxford, London Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059 Patricia Aufderheide, Jan Lauren Boyles & Katie Bieze 2012, Journalism Studies: Copyright, Free Speech, and The Public's Right to Know. Routledge :London available at Surveillance Devices Act 1999(NSW) Read More