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AIT Defamation, Freedom of Info, Privacy Act Etc test

Terms in this set (40)

1. Publication

There must be a publication of some sort, to a person other than the plaintiff. If the defendant even says something to someone else, that is a publication. Obviously, broadcast on television, an article in a newspaper and an article downloaded from the worldwide web are all publications. The publication is taken to have occurred when a person understands the words that were published. So for internet purposes, this takes place when a person, other than the plaintiff, downloads an article from a website and understands the words that are contained in that article. The place of publication is the place where the words are read and understood.

2. Identification

The publication must be of and concerning the plaintiff. It does not need to name the plaintiff, but if it doesn't there must be some extrinsic facts, which if the reader was aware of, would enable the ordinary reasonableT reader to identify the plaintiff.

3. Defamatory meaning

This is a two-stage process. Firstly, identify what is meant by the publication and secondly whether the imputations arising from the publication are defamatory. A publication is defamatory of a plaintiff if it contains imputations that:

• have a tendency to lower the plaintiff's estimation in the eyes of right-thinking members of the society generally; or
• were calculated to injure the reputation of the plaintiff by exposing him or her to hatred, contempt or ridicule;
• have the capacity and tend to put the plaintiff in the position of being shunned and avoided.

The imputations can arise from the natural and ordinary meaning of words, or there can be inferences, such as false or popular innuendoes.
1. Truth or justification

If the imputations are true, then the defendant has a complete defence. Regardless of what was published, the plaintiff loses. And it is the worst way to lose. The allegations are repeated at trial, over and over and possibly reported on by the media. The jury then declares that the defamation is true, exacerbating the defamation many times over. Then there is the matter of having to pay the defendant's costs.... The statute also provides that if the imputations are substantially true, then the defendant has a defence of justification.

Contextual Truth
- Some imputations are true but not all of them. E.g 3 defamatory imputations, if 2 are true but 1 is false/exaggerated, the one fake imputation will not really damage the victims reputation that much.

2. Fair comment or honest opinion

Innocent dissemination
When a subordinant distributor had no reasonable way of knowing that what they were sharing was infact defamation. E.g Librarians, broadcasters of live programs,

A defendant is allowed to publish a fair comment or honest opinion. For fair comment, the comment must be based on facts that are truly stated (or absolutely privileged) and the comment must be fair. For honest opinion, all that is required is that the opinion be held honestly (almost regardless of what it is!), that the opinion was based on proper material and that it was on a matter of public interest.

The next step is that the fair comment defence can be defeated if the publisher is actuated by malice. Malice is proven where a person makes a statement for an improper purpose or has an improper motive.