DEFAMATION update – an experiment in collaborative scholarship

By MARK PEARSON Follow @Journlaw

Both of my recent books are relatively up to date but anyone researching media law in traditional and new platforms knows how quickly the landscape is changing.

It’s for that reason I’m launching some collaborative update pages that take in some of the key chapters from both The Journalist’s Guide to Media Law (with Mark Polden, 2011) and Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012).

I’ve removed the copyright symbol © from these posts so these pages can serve as a resource for anyone in the fields of media law and social media law – students, journalists, lawyers, researchers, teachers … and even those writing competing books on the subject! (Remember, however, that we can’t steal the actual words of contributors when we write up the cases or materials they scout for us – we will need to verify the material and links and write them up using our own form of expression.) 

 I’ll get the project started with contributions from some of my own students and research assistants working on other projects and the material will appear in no particular order. Please offer your own alerts via the comments section of each topic’s blog post. (Remember there is word limit on comments so please keep contributions under 300 words). Australian and international cases and commentary are welcome.

I’ve already launched the CONTEMPT update page. Here is the DEFAMATION update page – with this first set of contributions from law and journalism student Fiona Self (thanks, Fiona!).

Cheers, Mark Pearson.

We also now have a  SHIELD LAWS update.

—–

(Update: These contributions from Virginia Leighton-Jackson, thanks.)

 

Caller, not broadcaster, responsible for defamation – 3.04.2012 – 27.07.2012

A man who called radio station 2HD Newcastle and made defamatory comments about an ABC reporter has been ordered to pay 80 per cent of the resulting pay out, plus the cost of two trials in the New South Wales Supreme Court.

The claims that caller Craig Stephens made were found to be “untrue in every respect” in the proceedings and prompted the ABC broadcaster to request an apology which was carried out on air.

In an assessment of the 2HD broadcaster who took the call, it was found that he had no reasonable suspicion to use the ‘kill button’ which was primed with a seven second delay, and thus should not be held entirely responsible for the resulting lawsuit; especially considering that Stephens was found not to be a ‘satisfactory witness’ in the proceedings, denying some of the evidence presented in court (including the email in which he threatened to kill himself in front of the head office of 2HD if he was sued, for the purpose of damaging the stations ratings and advertising).

Stephens also attempted to use the defences of fair comment/ honest opinion and qualified privilege, neither of which were upheld.

The court decided that Stephens should contribute to almost all of the damages settled upon, with 2HD paying the remaining 20 per cent, with the presiding judge saying:

“…2HD must share some responsibility simply as a result of enabling the publication by the talkback format.”

Links:

2HD Broadcasters Pty Ltd & Newcastle FM Pty Ltd v Wendy Stephens & Craig Stephens, 2.08.2012: http://glj.com.au.ezproxy.bond.edu.au/1853-article 

Supreme Court of New South Wales, full judgement, 27.07.2012: http://glj.com.au.ezproxy.bond.edu.au/files/2hdvstephensjudgment.pdf

2HD Broadcasters Pty Ltd & Newcastle FM Pty Ltd v Wendy Stephens & Craig Stephens trail report, 2.04.2012: http://glj.com.au.ezproxy.bond.edu.au/1781-article

 

Rafiq Ahmed v Nationwide News Pty Ltd & News Digital Media Pty Ltd, Yoni Bashan trial – 17.05.2012

In the ongoing trail playing out in the NSW District Court, Sunday Telegraph reporter Yoni Bashan has given evidence for Nationwide News in the defamation action brought by Rafiq Ahmed.

Ahmed, a fraud squad detective, is suing over an article published in the Sunday Telegraph.

The article in question was published in November of 2009 where Bashan has said he intended to convey that the detective was corrupt.

News is pleading using many defences including truth, fair report, fair comment, publication of documents, qualified privilege, honest opinion, and offer of amends.

Bashan said that the matters could not be disputed as Ahmed was found guilty during a Police Integrity Commission annual report.

However, Ahmed won an appeal in December of 2010, complicating the matter.

The trial is ongoing with Ahmed still taking action against all involved.

Links:

Gazette of Law and Journalism

Trial report 17 May: http://glj.com.au.ezproxy.bond.edu.au/1807-article

Trial report 15 May: http://glj.com.au.ezproxy.bond.edu.au/1805-article

Yoni Bashan’s article, “Rogues gallery of corrupt cops”

http://glj.com.au.ezproxy.bond.edu.au/files/dtroguesmco.pdf

AustLii database

            Ahmed v Nationwide News Pty Ltd [2010] NSWDC 183 (20 August 2010): http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2010/183.html?stem=0&synonyms=0&query=Rafiq%20Ahmed

 —-

Contributions from FIONA SELF:

Twitter refuses to uncover Bankwest senior executive impersonator

Title: Social media can kill reputation

Author: Tony Boyd

Date: 28 August 2012

Type of source: The Australian Financial Review

Country: Australia

Link to source: http://afr.com/p/business/chanticleer/cba_twitter_nightmare_highlights_UeoWmvxkwSDRDBjNiPcylJ

Summary:

• An unknown person impersonated a Bankwest senior executive on Twitter and tweeted inflammatory material.
• If those things had been published in an outlet owned by Fairfax Media or News Ltd, an injunction could have been sought to track down the impersonator.
• The Commonwealth Bank of Australia had to contact Twitter to have the account removed, which was a complex and costly process.
• The process of getting a false account removed can take about two weeks, according to CBA’s general counsel and head of corporate affairs David Cohen.
• Twitter refused to tell CBA the account details because it would have been a breach of their privacy rules.
• Currently, it appears that anyone can steal another person’s identity and say whatever they want, without facing any of the consequences.
• Many companies (such as NAB) use Twitter to deal with complaints and to inform customers of any technology outages.

—-

Defamed cricket player awarded $142,000 in damages for 24 word tweet

Title: Chris Cairns wins libel action against Lalit Modi

Authors: AFP

Date: 26 March 2012

Type of source: Newspaper article and full judgment

Country: United Kingdom (Royal Courts of Justice)

Link to source: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/cairns-v-modi-judgment.pdf

http://www.theaustralian.com.au/sport/cricket/chris-cairns-wins-libel-action-against-lalit-modi/story-e6frg7rx-1226310713029

Citation: Cairns v Modi [2012] EWHC 756 (QB)

Summary:

• Libel case
• Chris Cairns (UK cricket player) sued Lalit Modi, former chairman of the Indian Premier League, who tweeted on 10 January 2010 “Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today.”
• The tweet was seen by less than 100 of Modi’s followers, but after the online cricket publication reported by essence of the tweet, it’s estimated to have been ready by somewhere between 450 – 1500 people.
• UK Justice David Bean: Although publication was limited, that does not mean that damages should be reduced to trivial amounts.
  • Cairns endured a “sustained and aggressive” attack on his reputation
  • $142,000 damages plus legal costs

—-

Meggitt #suingtwitterbecause of Hardy tweet

Title: Twitter sued over Hardy Tweet

Author: Michelle Griffin

Date: 17 February 2012

Type of source: Newspaper (The Age)

Country: Australia

Link to source: http://www.theage.com.au/technology/technology-news/twitter-sued-over-hardy-tweet-20120216-1tbxz.html

Summary:

• In November 2011, writer Marieke Hardy wrongly named Joshua Meggitt as the author of a hate blog via Twitter
• Hardy and Meggitt settled out of court (estimated $15,000) and Hardy published an apology on her blog
• Meggitt is now suing Twitter Inc
• The original tweet appeared on Twitter’s homepage, was copied by some of Hardy’s 60,897 followers
• Meggitt’s lawyers say they are suing for the retweets and the original tweet

—-

Bahraini activist three month Twitter defamation sentence overturned

Title: Bahraini activist cleared of defamation

Author: DPA

Date: 24 August 2012

Type of source: Newspaper article (Sydney Morning Herald)

Country: Bahrain

Link to source: http://news.smh.com.au/breaking-news-world/bahraini-activist-cleared-of-defamation-20120824-24ph7.html

Summary:

• Bahraini activist Nabeel Rajab made some comments on Twitter calling for the resignation of Bahrain Prime Minister Khalifa bin Salman al-Khalifa
• Sentenced to three months in jail
• Sentence was overturned
• Interesting points:
  • Rajab will stay in prison because he’s already serving a three-year term of taking part in anti-government protests
  • The report that the Court overturned his defamation sentence comes from the state-run Bahrain News Agency

—-

Poet sentenced to one year in jail for posting a defamatory poem on Facebook

Title: Oman sentences writer, poet, for defaming sultan

Author: Reuters

Date: 9 July 2012

Type of source: Online article (Yahoo! news)

Country: Oman

Link to source: http://news.yahoo.com/oman-sentences-writer-poet-defaming-sultan-150629428.html

Summary:

• Omani poet Hamad al-Kharusi published a poem referring to the Sultan on his Facebook page
• Sentenced to one year in jail for defamation and for violating information technology laws
• Another three people were also convicted of defamation, one (author Hammoud Rashedi) held up a sign with certain sentences directed at Sultan Qaboos at a peaceful demonstration.
• Rashedi was sentenced to six months in jail for defamation

Comedian Mick Molloy loses appeal over not-so-funny defamation

Title: Molloy loses appeal over Cornes defamation

Author: Candice Marcus

Date: 24 August 2012

Type of source: ABC News and unreported judgment

Country: Australia

Link to source: http://www.abc.net.au/news/2012-08-24/molloy-loses-appeal-over-cornes-defamation/4221106?section=sa

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASCFC/2012/99.html?stem=0&synonyms=0&query=defamation

Citation: Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99 (24 August 2012)

Summary:

• South Australia Supreme Court, appealed to Full Court
• Defamatory comments made by comedian Mick Molloy on TV program Before The Game in 2008 about former federal Labor candidate Nicole Cornes.
• Chief Justice Chris Kourakis said Molloy’s attempted joke “fell very flat.”
• Molloy and Channel 10 had to pay Mrs Cornes $85,000 in damages plus interest and costs (total $93,000)