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Defamation law

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K 



Joined: 09 Sep 2011


PostPosted: Sat Dec 01, 2018 11:59 pm
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The next sentence is less epic but arguably more intelligible:

"(2) Whensoever upon the trial of any charge for the publication of a libel under the plea of not guilty evidence has been given which establishes a presumptive case of publication against the accused by the act of any other person by his authority, it shall be competent to such accused to prove that such publication was made without his authority consent or knowledge and that the said publication did not arise from want of due care or caution on his part."
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K 



Joined: 09 Sep 2011


PostPosted: Thu Dec 06, 2018 5:37 am
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Fixing Australia's broken defamation laws

https://www.theage.com.au/national/fixing-australia-s-broken-defamation-laws-20181129-p50j9z.html

"NSW Attorney-General Mark Speakman has pointed to the "huge rise" in defamation cases involving social media as a source of concern and said the laws need to be "more tech-savvy".

In June he spearheaded a national review of defamation laws, last updated in 2006 when mirror legislation came into force in each state and territory based on NSW's 1974 laws with some modifications.

The law reform process requires buy-in from each jurisdiction. On November 23, the Council of Attorneys-General met in Perth and endorsed terms of reference for the bureaucrat-led review, which are yet to be released. A draft discussion paper setting out potential reforms is expected to be published in the first quarter of 2019.
...

Two changes experts agree would benefit both ordinary people being sued for defamation, typically over online slurs, and big media outlets fending off claims, are a British-style "serious harm" test and applying a standard one-year limitation period to bringing defamation actions based on online publications, as already applies to publications offline.

The serious harm test, introduced in the UK in 2013, is designed to weed out lower-level claims before the parties proceed to the time and expense of a trial and provides that "a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant".
...

As for big media outlets fighting over public interest journalism, the range of fixes are technical and may not lie in reforming the Defamation Act but in changing the way cases are managed in court, including confronting recent issues about whether journalists can rely on a truth defence in cases where they need to use legal processes to obtain further evidence from the other side to bolster their case.

Sydney barrister Sandy Dawson, SC, who appears regularly for media outlets, says a reporter might rely on a "high-level, reliable source" who shows them documentary evidence in support of a particular allegation and "leaves [them] in no doubt" that it is true, without handing over physical copies of all those documents.

A journalist might prefer to have all that material in their possession when writing the story, but Dawson says it should not preclude a media outlet from relying on a truth defence if they need to make further legal investigations before filing a truth defence in court.

Media lawyers have also questioned whether Australia needs a broad public interest defence, similar to that introduced in the UK, to replace the existing defence of qualified privilege relating to publications in the public interest where publishers have acted reasonably.

It is well-known that the defence rarely succeeds in Australia when pleaded by media defendants, because courts find the reasonableness requirement has not been met.

Dawson says "a story with a very high level of public interest sometimes is only able to be published because of a confidential source", but the identity of the source is an important element in establishing reasonableness on the part of the publisher for the purposes of the qualified privilege defence.

It leaves media defendants in no-man's land: unable to rely on a truth defence, because the source cannot appear in court, and unlikely to succeed on qualified privilege."
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K 



Joined: 09 Sep 2011


PostPosted: Fri Dec 07, 2018 8:45 pm
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Quote:
Fixing Australia's broken defamation laws

https://www.theage.com.au/national/fixing-australia-s-broken-defamation-laws-20181129-p50j9z.html

"Two changes experts agree would benefit both ordinary people being sued for defamation, typically over online slurs, and big media outlets fending off claims, are a British-style "serious harm" test and applying a standard one-year limitation period to bringing defamation actions based on online publications, as already applies to publications offline."

So does the statute of limitations currently not apply to online articles? Hmm...

TBC
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K 



Joined: 09 Sep 2011


PostPosted: Fri Dec 07, 2018 9:06 pm
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"The recent decision in Dods v McDonald [2016] VSC 200* defined what constitutes publication in the case of online defamation.
...

This case concerned the publication of a website by a barrister in Queensland, which accused the plaintiff, a police officer, of shooting and killing a teenager in Northcote in 2008. The plaintiff was exonerated of responsibility in a report by the coroner in November 2011, but the defendant allowed the material to remain online until mid 2012.

Under the Limitation of Actions Act 1958 (Vic), an action for defamation must be brought within 12 months of the alleged publication. As the plaintiff issued a writ on 3 April 2013, the plaintiff had to prove the publication occurred on or after 2 April 2012.
...

However, in the case of material published online, Justice Bell held that publication of defamatory material requires action by both the publisher and the reader. This means publication will occur each time a person reads and comprehends the material, as by allowing access, the publisher is allowing the material to be published to the reader again. This is in contrast to printed material, such as a newspaper, where publication will be deemed to occur when the newspaper is published and read by the reader, but not where it was re-read."


https://harwoodandrews.com.au/news/2016/8/15/is-online-defamation-different-to-print-defamation

* http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2016/200.html
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K 



Joined: 09 Sep 2011


PostPosted: Sun Dec 23, 2018 7:59 pm
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Why Yael Stone was too scared to tell her story in Australia

https://www.theage.com.au/national/yael-stone-was-too-scared-to-tell-her-story-in-australia-20181220-p50nfs.html

"Australia now has a global reputation as having the harshest, most anti-journalism defamation laws in the developed world, and Sydney is the global defamation capital. More cases are tried there than in any other global jurisdiction.

Journalist Gerard Ryle is an Australian who runs the multi-award-winning, US-based International Consortium of Investigative Journalists. A number of his senior editors are also Australian.

But Ryle says it would be impossible for his organisation to be based in Australia.
...

"We could not be headquartered in Australia. Absolutely not," he told The Age and Sydney Morning Herald. "The defamation laws there are too restrictive."
...

In the United States, under the "free speech" doctrine of the First Amendment, a public figure complaining they have been defamed by journalists must prove the publisher acted with "actual malice" or with "reckless disregard" for the truth. The onus is on the complainant to prove it.
...

In practice, US news organisations often employ fact checkers, and the targets of investigations are given time to comment or provide context in answer to allegations. Assuming this is done, the journalist cannot be successfully sued for defamation, even if they inadvertently get facts wrong.

The United Kingdom changed its defamation laws in 2013, which made clear that if a statement did not cause serious harm then the claim could not proceed in the defamation court. There is also a public interest test for serious journalism. The number of cases in the UK has dropped significantly since."
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K 



Joined: 09 Sep 2011


PostPosted: Thu Dec 27, 2018 10:02 pm
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Australia's defamation laws are ripe for overhaul

https://www.theage.com.au/national/australia-s-defamation-laws-are-ripe-for-overhaul-20181207-p50kwk.html

"Sydney has a good claim to the title of being the defamation capital of the world. (Privacy is now the claim of choice in London, but that's another story.) There is enough defamation litigation in Sydney to have specialist lists in the Supreme and District courts.
...

Defamation law has a deserved reputation for being complex, technical and artificial.
...

What principles should guide the reform process? And what are the major problems?

A defamation law process underpinned by a commitment to simplification and rationalisation would be a sound start. Defamation law is complex and technical partly because it imposes liability for words by using still more words – lots of words. In some ways, this is perhaps unavoidable.

But defamation law should aim to be as comprehensible as possible to people who are not defamation lawyers.
...

There are some technical issues about defamation law that need addressing. For instance, the defence of contextual truth is an unglamorous but necessary issue requiring reform.
...

In 2013, the UK Parliament passed new legislation, the culmination of a three-year review process. (All three major parties in the UK went to the 2010 general election with defamation law reform as part of their platform.)

Since 2015, the Law Commission of Ontario has been conducting a full-scale review of defamation law in the internet age. Law reform bodies in Scotland, Northern Ireland and Ireland have also recently examined their respective defamation laws."

David Rolph is a professor of law at the University of Sydney Law School.
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Tannin Capricorn

Can't remember


Joined: 06 Aug 2006
Location: Huon Valley Tasmania

PostPosted: Sat Dec 29, 2018 10:04 am
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All of that is all very well, but one should take care citing arguments from sources like The Age, which has a massive vested interest in this issue, and isn't even trying to be even-handed or present the questions fairly.

(Similar remarks apply to several other media sources.)

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luvdids Sagittarius



Joined: 22 Mar 2008
Location: work

PostPosted: Sat Dec 29, 2018 11:53 am
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stui magpie wrote:
Is there a purpose behind posting all this stuff?


K wrote:
Umm... yes?


What is it?

Popped in to see what's happening in this thread and there's just pages & pages of K posting who knows what for who knows why.
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think positive Libra

Side By Side


Joined: 30 Jun 2005
Location: somewhere

PostPosted: Sat Dec 29, 2018 4:53 pm
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Tannin wrote:
All of that is all very well, but one should take care citing arguments from sources like The Age, which has a massive vested interest in this issue, and isn't even trying to be even-handed or present the questions fairly.

(Similar remarks apply to several other media sources.)


That’s the problem though what media can you trust?

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Tannin Capricorn

Can't remember


Joined: 06 Aug 2006
Location: Huon Valley Tasmania

PostPosted: Sat Dec 29, 2018 6:32 pm
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The Age is, generally speaking, the most balanced and reliable single source. Nevertheless, like all sources, it has its own obsessions and weak spots. They may actually be quite correct on this issue - I don't understand it well enough to have an informed opinion - but they are certainly speaking from self-interest.

(A self-interested speaker doesn't have to be wrong and may well be right in every particular. But you have to weigh up the argument with extra care.)

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stui magpie Gemini

Prepare for the worst, hope for the best.


Joined: 03 May 2005
Location: In flagrante delicto

PostPosted: Mon Dec 31, 2018 5:04 pm
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luvdids wrote:
stui magpie wrote:
Is there a purpose behind posting all this stuff?


K wrote:
Umm... yes?


What is it?

Popped in to see what's happening in this thread and there's just pages & pages of K posting who knows what for who knows why.


Cheers, I'm not the only one.

The idea of the tavern is to post opinions and discuss them, using links or quotes to support your argument, not just post page after page of articles that are relevant to the topic, with no context.

Personally, If I'm interested in a topic I'm quite capable of researching it myself. This is the Vic Park tavern, not the Vic Park research library.

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luvdids Sagittarius



Joined: 22 Mar 2008
Location: work

PostPosted: Wed Jan 02, 2019 5:21 pm
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Like that psych business thread, what even is that??? Shocked
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stui magpie Gemini

Prepare for the worst, hope for the best.


Joined: 03 May 2005
Location: In flagrante delicto

PostPosted: Wed Jan 02, 2019 5:27 pm
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^

NFI apart from page after page of K's pasted posts. I stopped even looking at it ages ago.

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