By MARK PEARSON Follow @Journlaw
Colleague Virginia Leighton-Jackson and I teamed up to write a chapter on Australian defamation and privacy law in the newly released book Comparative Privacy and Defamation from Edward Elgar Publishing.
The book [ ISBN: 978 1 78897 058 7; 480pp ] forms part of the Research Handbooks in Comparative Law series and is edited by András Koltay (Professor of Law, National University of Public Service and Pázmány Péter Catholic University, Hungary) and Paul Wragg (Associate Professor of Law, University of Leeds).It provides comparative analysis that examines both Western and non-Western legal systems, and offers commentary on issues of theory and doctrine, including the impacts of privacy restrictions, defamation reforms and new technologies on the law.
Our chapter (pp 381-398) is titled ‘Privacy and defamation in Australia – a post-colonial tango’.
It considers defamation and privacy law in its uniquely Australian context, where statutory and case law have evolved without explicit protections of free expression in its Constitution.
After offering an Australian constitutional, legislative and common law context, our chapter surveys the laws of defamation and privacy since English colonial settlement in the late eighteenth century.
Emphasis in the discussion of defamation is upon its relationship with privacy through various statutory iterations of the truth/justification defence which has at times featured privacy protections.
The focus of the survey of privacy law is the story of reform momentum over four decades towards an actionable tort for the serious invasion of privacy, which remains unfulfilled.
The chapter explains how this has impacted on celebrity plaintiffs’ preference for defamation when the media has scrutinised their private lives.
The case law and statutory and regulatory dimensions of both defamation and privacy are covered, with the chapter comparing and contrasting Australian defamation and privacy law with some key aspects of that jurisprudence in the United States (US) and the United Kingdom (UK).
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.
© Mark Pearson 2020 – the moral right of the author has been asserted.
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