Tag Archives: juries

Identification error leads to a useful case for teaching the basic elements of defamation

By MARK PEARSON

[research assistance from Virginia Leighton-Jackson]

The morphed identification of an innocent octogenarian tailor and his alleged gun-running son produces a useful case study for teachers and trainers trying to explain the basic elements of defamation.

The NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 centred upon an article in Sydney’s Daily Telegraph (22-8-13, p. 9) with the heading “Tailor’s alter ego as a gunrunner”. [The article in question is attached to the judgment as a pdf file.]

The article portrayed an 86-year-old suburban tailor with a distinctive name as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

The case is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

  • imputations – how they are worded and presented
  • the misidentification’s impact on the plaintiff’s relationships, business and emotional state
  • the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first
  • whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age].
  • whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
  • whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff.

On the question of identification, Judge Leonard Levy ruled:

Para 37   …where a plaintiff has actually been named in a defamatory publication it is not necessary for the plaintiff to show that those to whom the material was published knew the plaintiff: Mirror Newspapers Ltd v World Hosts Pty Ltd (1978 – 1979) 141 CLR 632, at 639.

38   Even so, the plaintiff must establish that the defamatory matter should be understood to be referring to him: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91. The determination of that question of identification is not to be decided by a consideration of what the publisher intended: Hutton v Jones [1910] AC 20.

39   In cases where a defamatory publication names one person but another person of the same name has been defamed, this can give rise to more than one claim: Lee v Wilson and Mackinnon (1934) 51 CLR 276, as cited in Australian Defamation Law and Practice, Volume 1, TK Tobin QC, MG Sexton SC, eds, 2003, at [6050].

40   In determining the question of identification, the question is, would a sensible reader reasonably identify the plaintiff as the person defamed: Morgan v Odhams Press Ltd [1971] 1 WLR 1239. …

49   In my view, the combined context … serves to adequately identify the plaintiff….

52   …the article strings together the plaintiff’s name, his profession, the fact that he lives in his home in the Sutherland Shire, and has a business altering the clothes of locals all point strongly to the article mentioning the plaintiff by his name and is sufficient of his personal situation to indicate it was him who was the subject of the article.

53   Those details all follow the sensational headline “Tailor’s alter ego as a gunrunner” thereby making a connection between the plaintiff and the described illegal activity concerning the cache of weapons and ammunition found at the premises.

54   The fact that an unclear undated photograph of Tony Zoef appears in the article (at par 38) is immaterial. The fact the article identifies the age of the person the subject of the article as being a 43 year old does introduce an element of possible confusion (par 30) along with the indistinct photograph (at par 38), but inaccuracy of some details appearing in a newspaper article is not an unknown phenomenon.

55   The salient feature is that the plaintiff was named in the article with sufficient of his personal details to suggest he was thereby identified, although the latter details are not essential to that finding.

56   As the article in question named the plaintiff, in my view thereby identifying him, this forms the basis of his right to bring the proceedings without more being shown by him. The fact that there were two persons at the premises named Tony Zoef is immaterial. Both persons of that name could bring proceedings for defamation in their own names: Lee v Wilson and Mackinnon (1934) 51 CLR 276.

59   …I am nevertheless satisfied that the material complained of should be understood as referring to the plaintiff even though the publisher may not have intended that to be so: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, at 91.

60   I consider that … an ordinary sensible reader would identify the plaintiff as the person the subject of the material complained of because of the specific of his name, profession, and locality as already explained. Such a reader… would not read such a sensational article as the one in question with critical and analytical care.

61   The article would be approached by such a reader with the permissible amount of loose thinking, and that reader would be reasonably entitled to draw the conclusion that the article was referring to the plaintiff, even though there were some elements of confusion such as a less than distinct photograph and a different age mentioned to that of the plaintiff. An ordinary reasonable reader would not necessarily know the plaintiff’s age or his level of interest in matters to do with space. The headline of “Tailor’s alter ego as a gunrunner” would catch the attention of such a reader and permit the general impression of the story being a reference to the plaintiff: Mirror Newspapers Limited v World Hosts Proprietary Limited [1978 – 1979] 141 CLR 632, at p 646; Morgan v Odhams Press Ltd [1971] 1 WLR 1239.

The judge also considered the important question of the impact of headlines:

44   In cases involving headlines, it must be borne in mind that the ordinary reasonable reader will draw conclusions from general impressions when reading the matter complained of. Such general impressions are necessarily formed by the technique of using prominent headlines to communicate the principal message of the publication, and it must be recognised that in that process, such material may diminish the reputations of those affected: Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519, at p 575.

A large portion of the judgment centred upon whether a defence of ‘offer of amends’ should be upheld under s 18(1)(c) of the Defamation Act. The judge held that, despite the serious errors in the reporting of the story and a dispute over whether the offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

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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 2016

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Barrister and co-author Mark Polden chats with @journlaw on #defamation defences: #MLGriff

By MARK PEARSON

Defamation laws can be intimidating for journalists, bloggers and other professional communicators. The key, according to barrister Mark Polden, is in researching and writing to the basic defences.

Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

In this 11 minute interview with @journlaw, he outlines in simple terms the three ‘bread and butter’ defences used by writers and publishers – truth, fair report and honest opinion (fair comment).

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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 2014

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On Skype with @journlaw – barrister and co-author Mark Polden on #defamation basics: #MLGriff

By MARK PEARSON

Exactly what is defamation and how does it apply to your average journalist or blogger?

That’s what I asked barrister Mark Polden in this short interview on defamation basics. Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

Here he offers a lay definition of defamation and gives some examples of how journalists, bloggers and other professional communicators might write to minimise the threat of legal action.

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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 2014

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15 mins with @journlaw – Peter Gregory on the art of court reporting #MLGriff #medialaw

By MARK PEARSON

What is the secret to good court reporting? Highly experienced court reporter and academic Peter Gregory [@petergregory17] – author of Court Reporting in Australia (Cambridge University Press, 2005) – tells @journlaw the essential techniques needed by a journalist wanting to cover the court reporting round.

CourtReportinginAustraliacoverGregory explains how he recently returned to duty when he filled in to cover the sentencing of Adrian Bayley for the murder of Jill Meagher – in a marathon 12 hour shift!

He discusses the court reporter’s difficulties in writing fair and accurate reports of trials, particularly when they might be unfolding in different courtrooms at the same time.

He also gives tips on how a journalist might stand up in court to oppose a suppression order being imposed by a judge or magistrate.

Useful viewing for journalism and law students – and for anyone wanting an insight into the work of the court reporter.

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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 2014

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15 mins with @journlaw – Peter Gregory on ‘contempt and the court reporter’ #MLGriff #medialaw

By MARK PEARSON

We hear about the many types of contempt affecting the role of the court reporter – but how does a journalist manage this in practice?

That is exactly the issue I raised with veteran court reporter (now academic) Peter Gregory [@petergregory17] in this interview covering the main types of contempt of court affecting court reporting – contempt in the face of the court, disobedience contempt, sub judice (prejudicial reporting) and interference with the deliberations of jurors.

Gregory – author of Court Reporting in Australia (Cambridge University Press, 2005) – explains how court reporters might be affected by such forms of contempt, offers examples from his own career, and suggests how journalists might adjust their own practice to minimise risk.

CourtReportinginAustraliacoverHe looks at the impact of new technologies – particularly social media – in the courtroom. Finally, he assesses the dynamics of social media and traditional media at play in the major Victorian trial of the murderer of Irishwoman Jill Meagher (Adrian Bayley) which resulted in the jailing of blogger Derryn Hinch on a contempt charge after disobeying a suppression order.

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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 2014

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Ten minutes with @journlaw – Anne Stanford from @SCVSupremeCourt talks open justice #MLGriff

By MARK PEARSON

In this week’s interview (actually 14 minutes!) I chat with the Strategic Communication Manager at the Supreme Court of Victoria, Anne Stanford, about open justice, suppression orders and general court reporting guidelines.

Listen to Supreme Court of Victoria Strategic Communication Manager Anne Stanford on open justice.

Listen to Supreme Court of Victoria Strategic Communication Manager Anne Stanford on open justice.

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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 2014

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If #cyberbullying is up, why is youth #suicide down?

By MARK PEARSON

[Extracted from my public lecture ‘Social Media – Risks and Rewards’]

Administrators and parents are indeed concerned about social media – partly because the little they know about it has been informed via the lens of the news media and war stories like those I have related above. Their perceptions are also skewed by the new industry of cyber-safety – everything from net nanny systems for your IT system through to speakers and consultants ready to advise on the evils of trolls and cyber-predators. I am not suggesting such inputs are unnecessary, but I wonder about their impact on policy at a time when parents and administrators are already approaching Web 2.0 with trepidation.

With all these resources committed to it, one might be excused for believing cyberbullying had driven young people to the depths of depression and anxiety and were consequently taking their own lives at an alarming rate. The fact is that in the decade 2000-2010 – a period during which both Internet and social media usage grew rapidly – youth suicide in Australia actually declined. It declined across the whole 15-24 year age group, with suicides among males in that age group decreasing by 34 per cent. That is not to say, however, that the rate of youth suicide is not alarming. The number of suicides is still far too high and like all stats this figure can have a range of explanations – better counselling, changes in media coverage, the efforts of campaigns like Beyond Blue and RU OK? (partly on social media),  and improved medicines for psychiatric conditions. …While it is tragic for any young person to take their life for such a reason, there seems to be no hard data that Internet and social media usage is driving more young people to this level of despair (ABS, 2012).

After all, social media is in many ways just a microcosm of our broader lives, and problems like bullying have always existed. These platforms present new channels for the demonstration of such behaviours, replacing or supplementing replacing the schoolyard taunts, the prank calls, the practical jokes and the toilet graffiti.

See the full lecture at: https://journlaw.com/2013/08/29/social-media-risks-and-rewards-journlaws-public-lecture/

© Mark Pearson 2013

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.

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