From: Brett Paatsch (paatschb@ocean.com.au)
Date: Wed Jan 29 2003 - 10:15:26 MST
Lee writes:
> Brett writes
>
> > The Onion is obviously a farcical publication aimed
> > at stirring and joshing rather than reporting. Fair enough.
> >
> > But given it actually includes photos (or digital likenesses)
> > of Bush and purports at least superficially to quote him, I wonder,
> > in light of a recent High Court decision on internet publication and
> > defamation in Australia whether The Onion and its ilk might be in
> > danger of sticking their neck out too far and becoming actionable
> > under defamation (libel) law. Probably not. They probably
> > concentrate mostly on pollies that are US or national leaders and
> > therefore deemed big enough to look after themselves. Good
> > chance the Aussie defamation laws might have gone out on a limb
> > of their own too.
>
> Laws against defamation and libel are something I know very
> little about. Why do they need to exist?
In a nutshell, because people rely on their reputations for their
livelihood.
Particularly after newspapers became more widespread it was found that
defamatory statements (its libel if its in print and slander if its verbal
but
both are forms of defamation) could do a lot of damage to reputations
that was not easily undone. In some cases think about accusations of
dishonest behaviour in business or accusations of child abuse for instance
the charges are serious enough for people hearing them even if they are
not proven to effect how people hearing them may treat the person who
is defamed.
Defamation has always been of particular interest to newspapers which
bring the opportunity to do some wholesale defaming. And there is
historical tension between free speech and defamation. In some legal
jurisdictions truth is a complete defence to defamation in others its not
enough for the charge to be true journalists for instance may also have
to show that making the charge publicly was in the public interest. A sort
of the-punishment-should-fit-the-crime argument. I.e. The public is deemed
to have a legal right to know that which is genuinely in its interest but
not just
that which would merely titillate or amuse. Members of society that
are deemed to be in the public life, like politicians etc are often afforded
some different standard. It can be harder to bring a defamation suit if one
is
in the public life, yet as many that are in the public life have legal
backgrounds
and know how to protect themselves MP's are frequent users of defamation
laws. In Australia Parliamentary privilege means MP's can say things in the
parliament without fear of being sued for defamation and its not uncommon
for Parliamentarians who feel that parliamentary privilege (intended to make
for better more accountable government) to challenge each other to make
the same remarks outside - where they'd be actionable.
> Clearly if someone
> writes anything untrue about someone else, suit may be brought
> (at least in the U.S.) with a fair chance of success. What
> more is really needed anyway?
I'm not sure exactly what the situation is in the US, but as a country that
derives its law from the English tradition it is likely to be pretty similar
to
Australia and the UK.
I think in Australia there are aspects of defamation law that are covered
by statute and to breach them is a crime and there are other aspects that
are covered only by common law under the law of torts or civil wrongs.
I'm guessing a bit but suspect the same would be the case in the US. The
statute-y stuff would probably be aimed at putting some sensibly limits on
the general freedom of the press in the public interest. The common law
stuff, where you could talk of bringing a suit against someone probably is
a common law suit where the tort is defamation.
I'm not sure if you are implying that there are other sorts of law suit that
people can bring in a common law context that are not called defamation
but be successfully pursued simply on the basis of what has been said not
being true. Its possible, there are things like fraud and misrepresentation
which involve untruth.
As a rough sort of model. Freedom of speech is unrestrained except where
its defamatory. The claim of defamation requires a defence (the onus is on
the one accused of defaming to show there were grounds). In some cases
truth is a complete defence and in others truth alone is not sufficient
defence
to the charge of defamation their may need to be a higher public interest
than mere titillation or amusement for instance.
Whilst defamation laws can if caste too widely hurt free speech I think they
are a legitimate part of civil society in that it I think it really is true
that
society as a whole benefits from having some remedy against the circumstance
where ones competitors or opponents can simply undermine ones reputation
by saying something untrue. Its much harder to undo especially printed
defamatory statements than it is to make them because its hard to know who
has been effected. Think of say a school teacher unjustly accused of child
molesting most parents would not decide the best course was to talk it over
with the teacher to make sure a good teacher wasn't blamed unfairly most
people would opt for the more economical err on the side of caution option
and simply get their child the hell out of there. That's understandable from
the parents point of view but a gross injustice if the teacher is actually
innocent and has been defamed and as a consequence can't earn her
livelihood. Same principle applies to businessmen or traders who have
their good name impacted by easily made slurs. Defamation laws don't
undo the damage done but they do partially compensate and they act as a
deterrent on the those who might otherwise defame casually and at will.
Brett
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