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18/04/23 Copyright, Dan Svantesson 2002 1
Law 105 Communication and the law
18/04/23 Copyright, Dan Svantesson 2002 2
Confidentiality:
Prevents media from accessing information
Protects media’s sources
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Confidentiality:
There are three elements of an action to restrain a publication of confidential information:
1) The information must be of confidential nature;
2) The circumstances of the communication must have imposed confidentiality; and
3) There must be an actual (threat of) unauthorised use of the confidential information.
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Confidentiality:
Disclosure to a limited group of people does not necessarily deprive the information of its confidential nature.
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Confidentiality:
Disclosure to a limited group of people does not necessarily deprive the information of its confidential nature.
TEST: Is the information in the public domain?
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Confidentiality:
If the circumstances are such that any reasonable person standing in the shoes of the recipient of the information would have realised on reasonable grounds that the information was given to him or her in confidence, that is sufficient to impose upon the recipient an obligation of confidence
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Confidentiality:
People must accept the risks inherent in their chosen way of communication.
REMEMBER: E-mails are as private as a postcard!!!!
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Confidentiality:
Do not publish information that it is obvious that was meant to be confidential, and it is “inconceivable” that the person who first communicated the information would allow a third party use of it.
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Confidentiality:
actual (threat of) unauthorised use of the confidential information
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Confidentiality:
1) The information was already in the public domain
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Confidentiality:
1) The information was already in the public domain
2) Justified disclosure
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Confidentiality:
“just cause or excuse”
i.e. the public interest in publication is greater than the public interest in maintaining the confidence.
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Confidentiality:
Public interest v. interesting to the public
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Confidentiality:
Public interest v. interesting to the public
The media benefits from expanding the “public interest”
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Confidentiality:
Public interest v. interesting to the public
The media benefits from expanding the “public interest”
Media not always the best option
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Confidentiality:
Public interest v. interesting to the public
The media benefits from expanding the “public interest”
Media not always the best option
Mere allegations not always enough to justify disclosure
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Confidentiality:
Public interest v. interesting to the public
The media benefits from expanding the “public interest”
Media not always the best option Mere allegations not always
enough to justify disclosure Your source’s motives
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Confidentiality:
1) The information was already in the public domain
2) Justified disclosure
3) Whistleblower protection
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Confidentiality:
Remedies: Interlocutory injunction (Lennon case)
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Confidentiality:
Remedies: Interlocutory injunction (Lennon case) Permanent injunction
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Confidentiality:
Remedies: Interlocutory injunction (Lennon case) Permanent injunction Account of profits
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Confidentiality:
Remedies: Interlocutory injunction (Lennon case) Permanent injunction Account of profits Damages
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Confidentiality:
“Professional confidential relationship privilege“:
Balances the harm done to the confider, if information is disclosed, and the desirability of the
evidence being given Evidence Act 1995 (NSW) s.126(a-f)
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Privacy:
“The interest of a person in sheltering his or her life from unwanted interference or public scrutiny.”
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Privacy:
ICCPR, Article 17:
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.”
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Privacy:
Defamation Confidentiality Trespass Nuisance Data protection
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Privacy (Trespass):
“unlawful interference with land which is in the possession of another”
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Privacy (Trespass):
Entering land without consent Remaining on land after consent is withdrawn Leaving objects on land
Normally does not amount to trespass: Surveillance from other premises Surveillance from the air
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Privacy (Trespass - Remedies):
Damages Injunction (trespass) Injunction (subsequent publication)
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Injunction (subsequent publication):
publication must be unconscionable
publication would lead to irreparable harm to the plaintiff
protection of injunction outweighs the need for freedom of speech
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Privacy (Trespass - Remedies):
Damages Injunction (trespass) Injunction (subsequent publication) Self-help Criminal sanctions
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Privacy (Nuisance):
PRIVATE and public Unlawful interference with enjoyment of land For example, noise, fumes and smells. Trivial interference is insufficient Actual damages must be shown Defendant must have an interest in the land in
question
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Privacy (Nuisance):
Telephone calls
Surveillance from other premises or the air
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Privacy (Nuisance - Remedies):
Damages Injunction (nuisance) Injunction (subsequent publication) Self-help
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Scenario : “A lies to B in saying that their common friend, C, knowingly sells rotten apples.”
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Legal Areas:
Defamation
Injurious falsehood
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The cause of action: Three steps
1) The matter complained of must be ‘defamatory’;
2) The plaintiff must be identified as the one that the defamatory material relates to;
3) The defamatory material must have been ‘published’.
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Defamatory?!!
Common law (i.e. ACT, NSW, SA, Vic & WA):
1) exposing the plaintiff to: hatred, contempt or ridicule.
2) cause the plaintiff to be shunned or avoided
3) lower the plaintiff in the estimate of others (impute blame on the plaintiff)
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Is the plaintiff identified?
MAIN RULE:
“of and concerning the plaintiff”
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Is the plaintiff identified?
Plaintiff not named:
“Are [the words] such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he [or she] was the person referred to?”
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Publication:
The publication must be made to a person other than the defamed
The person to whom the material is published must understand it to be defamatory
It is where and when the defamatory material enters the third person’s mind that the defamation occurs.
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Publication:
All forms of communication can be used to defame somebody
Publication to one single individual, other than the plaintiff, is sufficient for an action in defamation.
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“Justification” or truth - defence
Truth alone is a complete defence in common law. (Vic., SA, WA & NT)
Truth is a defence if the publication was for “public benefit” (Qld, Tas & ACT)
Truth is a defence if the publication related to a matter of “public interest” or was published under “qualified privilege”. (NSW)
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Absolute Privilege:
Communication between spouses – exists in common law, but not expressly in Qld & Tas (undecided)
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Qualified privilege:
“A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. (This reciprocity is essential.)”
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(Fair) Comment: Comment by the defendant (s. 32) 32(1) Subject to sections 30 and 31, it is a
defence as to comment that the comment is the comment of the defendant.
32(2) A defence under subsection (1) as to any
comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant.
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(Fair) Comment:
S. 30 – “based upon proper material for comment”
S. 31 – “public interest”
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Triviality:
Triviality – the publication is such that the person defamed is not likely to suffer any harm.
must relate to the circumstances of the publication rather than the defamed person.
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Remedies:
Damages
Injunctions
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Reading instructions:
AML pages 254 – 266
Confidentiality (if you have not done it already)
Refresh you memory of defamation (if you feel unsure about that area)
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