Question:
Discuss the potential for regulatory sanction and legal liability relating to relating to privacy, defamation and copyright. Illustrate your discussion with reference to relevant examples and cases where possible.
1. Freedom of speech: freedom of press is an important aspect of the freedom of speech for the media. Without this right media can be rendered useless, as it is the job of the media to make people know about what is happening around them. It is important that the truth is not suppressed, but then it is also important that someone’s privacy is not breached. Therefore although the Privacy Laws have exempted media from gathering and disseminating information, it has also put some restrictions through interpretation by case laws and narrowed the definition of News activity, as something that is in public interest (Beattie and Beal, 2007). Hence, in the present case, the media was at fault in publishing something as private about the footballer’s life as the information was in the nature of public interest, it was only meant for a commercial purpose for XYZ News channel.
2. It is necessary that when private information is collected or disseminated for the viewers or readers the individual whose information is to be made public must be consented first and if the individual consents then the consent could also include changing the facts if they are not correct. In the present case the personal information of Jeff was made public without his consent which forms tort of Invasion of Privacy. In the case of Hosking v Runting, the court of appeal held that tort of invasion of privacy exists where private facts about someone are made public which are offensive in nature and do not fall under the ambit of matters relating to public concerns which could be a possible defence (Aplin, Gurry and Gurry, 2012).
3. Private facts as (discussed above) could amount to tort of invasion of privacy if they are made public without the consent and are not in public interest and are offensive in nature. The definition of private facts has been held to be those facts which as per a prudent person have a reasonable amount of privacy attached to it, according to Television New Zealand Ltd v Rogers the court of appeal stated that personal facts includes intimate personal facts such as health, sexual activity and domestic relations. Therefore the personal information of Jeff’s favourite food being pies and his smoking habit comes under the scope of personal facts which are barred from being disseminated by media and would amount to tort of invasion of privacy and would lead to remedies under tort (Butler et al., 2007).
4. Privacy and well-being of a person- the freedom of expression and individuals privacy needs to strike a balance, therefore it is necessary that information that affects the individuals well being and their dignity must not be made public, because every individual has a right to a dignified life (Doyle and Bagaric, 2005). In the case of Campbell v MGN Ltd (2004), Naomi Campbell, a famous model was photographed after leaving from a narcotics clinic. The photograph was published by the newspaper Mirror, Naomi filed for breach of privacy. The House of Lords held that this was a breach of privacy as the model has a right to live with dignity and such a thing if made public can ruthlessly affect the reputation of a person as well as her confidence. The House of Lords considered the act of the media as breach of confidence by misusing private information (Wagner and Sherwin, 2013). Similarly in the present case there has been a misuse of private information of Jeff and has tainted his career by stating his private information as being the cause of his failure in the football match.
Defamation: the present case has two scenarios where defamation can be seen:
By the gourmet restaurant wherein Jeff states the food to be disgusting which was made public by XYZ channel and the restaurant was eventually closed.
In this case, the Jeff had described the food of the Gourmet restaurant as disgusting which was aired by XYZ channel. Here as per the defamation laws both Jeff and XYZ channel can be made liable for defamation as they had spread bad word about the restaurant which has caused them harm.
Jeff has actually made the defamatory statement and the XYZ channel has published it. Although innocent publication as well as truth is a defence under the Defamation laws by in this situation that defence is not possible because of the following reasons:
1. The publication done by XYZ was deliberate as they knew that it would harm the reputation of the restaurant, even though they did not mean to defame the restaurant and they were only trying to cover the news of Jeff Star.
2. Jeff Star did not make a true statement as he had no substantiating proof of calling the food as “disgusting”, although he was only trying to defame the reporter Jock Grubb. Hence, statement passed by Jeff Star was defamatory and no defence can be used by him. Truth along with proof has been considered as the most important factor in the tort of defamation, as held in Fairfax v Coco Roco case, wherein a food critic had made truthful statement about the food but some descriptions made by him could not be proven and therefore he was held liable for defamation (Kenyon, 2016).
3. However in the present case, the damages against Jeff Start and XYZ channel can be mitigated under the Defamation laws as Jeff had apologised for his statement and the same was made public by the XYZ channel. But the apology made cannot be a defence under the laws (Barnett and Harder, 2014).
4. Another instance of defamation was the description of Jeff by XYZ publicly as “out of condition” and “lazy”. Jeff Star can file for defamation against Jock Grub and XYZ channel, as the statement made by Jock Grub which was made public by XYZ channel was defamatory and had affected the reputation of Jeff star as being Lazy nad and out of condition. Although the channel has on two occasions proved the truthfulness of the fact that Jeff Start “likes his pies and his cigarettes”, but the defence of truth and justification shall not apply because of the following reasons:
5. Jock Grub and XYZ channel in order to defend the case on the basis of justification and contextual truth cannot look at the facts of smoking and liking pies in its individual capacity, the defamatory part is the other half of the statement which stated that he was out of condition and lazy in training. Although the fact of Jeff liking pies and smoking was true but this cannot be associated with the contextual truthfulness of the sentence of him also being out of condition and lazy in training. In MacDonald v Australian Broadcasting Corporation, the publication made was that the former minister had “made millions over mining deals in NSW. They were found to be corrupt and now face possible criminal charges”, it was however further found by the authorities that they were dishonest and been misusing their positions (Barnett and Harder, 2014). Hence in this case there was justification along with contextual imputation of the truth.
5. The defence of justification and of truth fails here as the relevance or contextual implication is wrongly imputed in the present case, as there is no connection in liking pies and smoking with that of a person becoming out of condition and lazy in training. Hence, there was no truth in statements made of being out of condition and lazy in training and hence the defence of justification and contextual truth shall not be applicable (Barnett and Harder, 2014).
When someone’s original work is used by someone else it amounts to infringement of copyright under the Copyright Act, 1968 (Kenyon, 2016). In the present case in an official reception of the footballers involved sponsors, one of the sponsors took posted the photographs of the event, XYZ channel published one of the photograph that had Jeff Star in it without the permission of the sponsor to whom the photograph belonged. There was an infringement of the copyright that subsisted in the photograph owned by the sponsor. The infringement was because of the following reasons (Knight, 2013):
1. The law of privacy can be enshrined in a person’s right over its property. Copyright laws also protect an individual’s right to privacy over that property. A photograph is therefore an intellectual property and hence is protected under the copyright act as somebody’s property.
2. On various occasions and cases a photograph clicked by somebody has been used by others in such circumstances courts have held that the owner of the photograph had a right over the photograph as it constituted as his property. Like in the case of Ratcliff (a photographer) several of his photographs were used by Sydney Morning Herald without his permission and sued the newspaper for copyright infringement. This amounted to infringement of copyright.
3. Photographs are protected under the copyright laws as being an artistic work, the author of the photograph is the person who took it and the copyright therefore lies with him. In cases where a photograph is commissioned then the copyright lies in the person who commissioned it. Here in this case therefore the sponsor has the copyright of the photograph published by XYZ channel and they are therefore infringing the copyright laws.
4. The sponsor had posted the photograph of the event on his facebook page which is although a public platform but it is only meant for the people whom the sponsor knows, therefore using a photograph of the sponsor would not only amount to copyright infringement because the photographs copyright was vested with the sponsor, but is also a breach of privacy.
5. Even if it is considered that the photographs were already published and hence were in the public domain and therefore they could be used. The law in this respect also protects both published and unpublished work of the author. In cases of unpublished works the author has the right to first publication and in cases of a published work the author has the right to issue the copyright work to public (Davison, Monotti and Wiseman, 2008).
6. In Pro-Seiban Media AG v Carlton UK Television Ltd the court of appeals held that in order to make the information public in it is not necessary to reproduce the document that has a copyright of somebody else, even if the information is made public that could suffice the need of informing the people (Bowrey, Handler and Nicol, 2010). In the present case also, even if we consider that the photograph was used in public interest to inform the people of the truthfulness of the defamatory statement made by the reporter Jock Grub, then also the use of photograph of the sponsor would amount to infringement of copyright as the reproduction of the photograph was not necessary and the information could be let out to public even by a description of the said fact.
References
Aplin, T., Gurry, F. and Gurry, F. (2012). Gurry on breach of confidence. Oxford: Oxford University Press.
Barnett, K. and Harder, S. (2014). Remedies in Australian private law. Cambridge University Press.
Beattie, S. and Beal, E. (2007). Connect + converge. South Melbourne, Australia: Oxford University Press.
Bowrey, K., Handler, M. and Nicol, D. (2010). Australian intellectual property. South Melbourne, Vic.: Oxford University Press.
Butler, D., Rodrick, S., McNamara, L. and Fitzgerald, A. (2007). Australian media law. Sydney: Lawbook Co.
Davison, M., Monotti, A. and Wiseman, L. (2008). Australian intellectual property law. Cambridge: Cambridge University Press.
Doyle, C. and Bagaric, M. (2005). Privacy law in Australia. Sydney: Federation Press.
Kenyon, A. (2016). Comparative defamation and privacy law. Cambridge: Cambridge University Press.
Knight, W. (2013). Copyright: The Laws of Australia. Thomson Reuters Australia.
Wagner, A. and Sherwin, R. (2013). Law, culture and visual studies. Dordrecht: Springer.
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