Question:
Discuss about the Misleading Conduct and Economic Torts.
According to the case study the issue has been arises whether Denise Denefew can able to claim compensation for the defamation against Will Smear and iNyouEndO. Another issue is Will Smear and iNyouEndO can be able to defense himself against the charges by Denis?
According to the case study it has been found that Deniseis suffered for the defamation by Will Smear through some misleading conducts through the social media. Now the issue has been arises that Denise want to sue Will Smear and iNyouEndO for publishing wrong information and hamper her personal life and celebrity images (Kelley and Zansberg, 2014).
When a person was damaged or attacked or disturbed by another person and that damage affect his or her reputation by some conduct ethics then it will be known as the defamation. According to the Defamation Act 2005 it has provides the provisions where the person who has been referred for the deformation can protect by taking legal actions against the person who is responsible for the attack or damages (Curtis 2016).
The defamation only applied for the legislation when there is any statement which has been published through spoken or written on illustrated or uses any social media by one person to another. The plaintiff needs to identify the statement or material where he or she has been defeated directly or indirectly. There should be some proof where it is stated that the published statement is defamatory for the plaintiff (Kelley and Zansberg, 2014).
The section 25 of Defamation Act 2005 has provides the provisions where the plaintiff can defend himself or herself for the publication of defamatory matter and must prove the definite factors which should be substantially true (Curtis 2016).
Therefore according to the case study she has claimed that defamation has been published some facts or statement which was confidential for her and affect her celebrity images. In a famous case Cornes v The Ten Group Pty Ltd & Ors [2012] it was found that a famous known person Stewart Dew who was subject to defamation by a comedian Mick Molloy. However, the attempt to joke which has affected the celebrity images of him and hampers his career. He has made the complaint in the South Australian Supreme Court in 2011 where he subject to the defamation and Mick Molloy has been fined $85,000 including indemnity cost (Curtis 2016).
Therefore according to the case study it can be stated that defamation has been proved because Denise was not having any treatment in the Ray of hope Treatment Centre for having alcohol and drugs but she has a mild obsessive compulsive disorder for that matter she went to the centre for having treatment (Kelley and Zansberg, 2014).
The Section 30 of the Defamation Act 2005 provide the privilege in the common law defense for apply the statutory difference and the section 27 of the Defamation Act 2005 defined the options where the Publications must privileged on the circumstances of the published matter through various documents or through any debates or through any given evidence or submitting the document regarding the defamation. In another case the Howden vs ‘Truth’ & ‘Sportsman’ Ltd (1937) it has been found that the plaintiff believes but he was alleged with defamation. In this case the court has found that an importance of telling truth and public benefit the deformation should carry the truth of the matter. In another case of defamation which is JONES vs. SKELTON. (P.C.), it has been found that the plaintiff who is a shire councilor make the allegation against the defendant who is a publisher and proprietor of a newspaper has been published his personal detains in the news paper and the plaintiff think it will affect her personal life so he can sue the defendant for the defamation. Here the liable and slander has been conducted. Therefore according to the case study, Will Smear can use the defense factors in this case as because Denis sued him (Kelley and Zansberg, 2014).
Denise Denefew is famous for the Olympic gold medalist swimmer who recently works as a solicitor in Geelong specializing in family law. However he has also having treatment from the Ray of hope Treatment Centre for a mild obsessive compulsive disorder. Now he has found that, Will Smear who published a blog where he has mentioned about her health issues. Basically Will Smear uses a blog where he always criticize formal lawyers and there incompetence and unprofessionalism which is known as lawyers watch (Kelley and Zansberg, 2014).
However in his blog he has mentioned a link where the hyperlink provide a blog where it is written that Denise Denefew is having treatment at the Ray of hope treatment centre for two weeks for drug and alcohol addiction (Barendt, 2017). INyouEndO which is an online media organization who are famous for publishing gossip about celebrity titbits where they just mentioned about the Denise situation and hoping for the best result. Now it has been found that Denise actually having treatment from Ray of hope treatment centre for two weeks for the treatment of mild obsessive compulsive disorder (Pelletier, 2016). Therefore, the wrong information has affected his image and the viewers or his fan followers getting wrong message about her addiction in drug and alcohol which may affected his career also therefore he can make the allegation against both will and innuendo (Curtis 2016).
According to the section 25 of defamation Act 2005 provides the defense for the plaintiff who is suffering for defamation where that person must prove the justification of the statement. Justification can be pleaded in defense of both facts and opinion where the statement must be substantially truth and accurate. In the case of London Computer Operators’ Training Ltd & Ors v BBC & Ors (1973) the defense has been imputed by the justification of the substantially truth of the deformation by them. When defamation is considering that there is seven facts which should be proved those are – truth, fair comments, absolute privilege, qualified privilege, the defenses of the publication of public documents which should fair reports of public proceeding and triviality of the defense. Therefore the person who is seeking for the defense for defamation all of the facts should be proved (Pelletier, 2016). When someone is having treatment whether for the drug addiction or for any compulsive disorder nobody should published the private and confidential matters in publicly. Here, Will Smear has published wrong information about Denise where she is having treatment for obsessive compulsive disorder. Therefore it is the duty of the treatment centre also that they must not provide any information about the patient in publicly and for Denise it has been a disaster because she is known as a famous swimmer and the wrong comments may affect her career (Barendt 2017).
She has made the allegation against both of them where Will can use the sec- 25 of Defamation Act 2005 and present every fact regarding the defamation by him and iNyouEndO. The sec-26 of define the defense in contextual truth where Denise can show all her treatment documents to the court that she was having treatment for the obsessive disorder for two weeks (Kelley and Zansberg, 2014). The fair comment is the honest opinion in the defense procedure. The defense factors will protects commentary, opinion, analysis and editorials on matters of public interest. The sec- 31 defines the fair comment and Denis need to state the honest opinion rearguing the defamation. The absolute privileged in the defense procedure where the statement which has been made must protect the maker where the statement is been made in public, derogatory and untrue, and even though they are published maliciously (Pelletier, 2016). Qualified Privilege defines those statements where it is available in respect of other communications and made for the public interest. It only provide the defense if it in the public interest, to protect the interests of the person publishing the statement, to protect the interests of the person to whom it is published and where there is a community of interest between the publisher and the recipient (Barendt 2017).
A public document is another factor in defamation case when the common law defense has the privilege on the protection. Therefore section- 28 of the Defamation Act 2005 define the national defense for the publication of public documents where defendant can stated for the defense by stating that the publication has been updated for a fair comment along with the summary or extract of a public documents (Kelley and Zansberg, 2014).
The defense of Triviality defines in the Sec- 33 of the Defamation Act 2005 by providing the publication of defamatory matter by defendant according to the circumstances of publication (Pelletier, 2016).
Conclusion
Therefore according to the case study, it can be defined that the Will and iNyouEndO both of them can use the defense according to the defense section in this act. The plaintiff is suffered by the defamation where her reputation has been affected and false statement has also included in this case. She can ask for remedies from them whereas, both of the defendant can use the defense sections as per the Defamation Act 2005
References
Barendt, E., 2017. Defamation Law.
Barnett, K. and Harder, S., 2014. Remedies in Australian private law. Cambridge University Press.
Butler, D.A. and Rodrick, S., 2015. Australian media law. Thomson Reuters (Professional) Australia Limited.
Cornes v The Ten Group Pty Ltd & Ors [2012] SASFC 99
Curtis, C., 2016. Internet defamation. Precedent (Sydney, NSW), (132), p.16.
Howden v ‘Truth’ & ‘Sportsman’ Ltd (1937) 58 CLR 416
JONES vs. SKELTON. (P.C.)
Kelley, M.E. and Zansberg, S.D., 2014. 140 characters of defamation: The developing law of social media libel. Journal of Internet Law, 18(1).
Kenyon, A., 2013. Defamation: Comparative law and practice. CRC Press.
London Computer Operators’ Training Ltd & Ors v BBC & Ors (1973) 2 All ER 170
MacCallum, W., 2015. Defamation actions and social media: Where are the risks?. Governance Directions, 67(11), p.677.
Pelletier, N., 2016. The Emoji that Cost $20,000: Triggering Liability for Defamation on Social Media. Wash. UJL & Pol’y, 52, p.227
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