ACL 2070
Editing Principles and Practice
Semester 1 2014
Lecture 11 Defamation
by Ian Syson
George Pell's 'gaff' on Q&A
A number of people responded to this with varying degrees of humour. One of them was Catherine Deveny who posted a photo of Pell on Twitter with the words "we're preparing young English boys" on it.
CARDINAL George Pell has halted legal action against Twitter after defamatory comments linking him to child sexual abuse were removed from the site.
The legal stoush involved acid-tongued commentator Catherine Deveny, whose tweet has landed her in yet another controversy.
The tweet that angered the Catholic Church has a photo of Cardinal Pell with the words,"Were preparing young english boys''.
In a legal letter, seen by the Herald Sun , addressed to Twitter Inc, it said Deveny "intentionally and maliciously'' took words out of context that were aired on the ABC's Q&A program in April.
Cardinal Pell actually said the church was preparing young English boys "for Holy Communion''.
Deveny was sacked from The Age in 2010 over comments about stars at that year's Logies.
Deveny apologised to Cardinal Pell on her website.
His legal team stopped legal action after the tweet was removed and it was promised similar tweets would not be published.
Following the legal threat, Deveny, who has more than 16,000 Twitter followers, issued an apology on her blog for any hurt Cardinal Pell may have suffered, insisting she never intended to suggest he was a paedophile.
"Clearly it was significant enough hurt and embarrassment caused for him to lawyer up and spend the Catholic Church's money to pursue defamation action against Twitter and me," she wrote.
"There must have been deep deliberation over the decision to spend thousands of dollars of parishioners' money on legal fees.
"Spending money that could have been spent feeding the poor, sheltering the homeless or alleviating suffering, instead of on defamation litigation, clearly illustrates how serious the breach I allegedly committed was in the eyes of Cardinal Pell."
Deveny noted many other Twitter users had distributed the image and called on Cardinal Pell to "forgive" her.
As a sideline argument this case also brings out the issue of how well our copyright and defamation laws in general are adequate to the new social media.
Freedom of speech
One point that comes out of this is that we don't have free speech in Australia. The Supreme Court found that we have an Implied right to free speech but only as it relates to political speech
There are a number of laws and provisions that get in the way of our right to free speech.
The definition of "defamatory matter" varies among Australian jurisdictions. In some jurisdictions common law definitions apply, while in others (e.g. Queensland and Tasmania) the definition has been codified.
Very generally speaking, material that could be found to be defamatory includes that which has the tendency to lower the person in the estimation of others, or that would tend to result in the person being shunned or avoided or that is likely to expose the person to hatred, contempt or ridicule (trivial ridicule or good natured humour is less likely to be problematic than derisory ridicule).
"Defamation is the publication of words or images to a person that damages the reputation of another ['slander' if spoken words, 'libel' if written words or images]. A defamatory statement is one that is likely to cause ordinary, reasonable people to think less of the person about whom the words or images are published. An inference that casts a defamatory imputation is enough to bring an action.
The following are examples of defamation:
An imputation which may tend to cause a person to be hated or despised, or cause them to be treated with contempt by their peers;
The publication of material that renders a person to ridicule, even if involving humour. The publication of a photograph that contained an optical illusion giving the appearance that someone was guilty of indecent exposure is defamatory;
Certain caricatures have been held to be defamatory. Determining what is defamatory is notoriously difficult in these matters. The distinction between artistic freedom and defamation will no doubt remain the subject of litigation."
For a defamation action to be successful, it must be established that the communication:
was published to a third person, i.e. to at least one person other than the plaintiff (person/entity defamed).
identifies the plaintiff, for example, by name or by a reference to a small group of people, etc.
contains a defamatory statement or imputation (whether intentionally published or not).
A number of defences to defamation exist. These include:
justification/truth of the imputation: the imputation is true or substantially true. In some Australian states the true or substantially true imputation must also be a matter of public interest or published for public benefit;
absolute privilege: if material was said in court or Parliament. This defence is not available if the same statement was made outside of court or Parliament.
qualified privilege (fair and accurate reporting of court and parliament allowed): this permits the media to publish a report of statements made in court or in parliament provided the statements made in court or in Parliament are fairly and accurately reported;
requirement to divulge and to know communications (for example, character references or reports to authorities);
certain publications are given statutory protection (i.e. an Act permits the publication to be made and the publisher not to be liable, eg reports to authorities);
political debate and discussion: the reasonable publication of matters of political and governmental debate and discussion;
fair comment; and
consent.
Defamation with malice will defeat all defences other than truth of the defamatory material.
Andrew Ettinghausen : the rugby league player sued Packer's magazine HQ for imputing he'd deliberately permitted a photograph to be taken of his genitals, when the mag published a limp pic of some footy players in the shower after a match. Was awarded $350,000 at first then reduced to $100,000 on appeal but the total cost to the Packers including legal was about $2 million. ET was represented by Tom Hughes QC who had shortly earlier been dumped from his Packer retainer by Al "Chainsaw" Dunlap.
Pauline Hanson : sued the ABC when Triple J played the Pauline Pantsdown song, I'm a backdoor man . It accused her of being a homosexual and a generally unsavoury character and the court ordered that it not be played again.
Shane Warne : the Herald Sun settled one case in April 1999 on the steps of court after running a page one story accusing him of match fixing. The settlement is rumoured to have cost the paper more than $100,000.