This is an assignment that I completed for PWP220 – Writing, Deception and Authenticity. It was the first unit that I received a HD overall in and much of it was thanks to this work. Therefore this was one of my more memorable assignments over the two degrees that I have completed.
What constitutes defamation is entirely dependent on the sensitivities of a particular type of person. Writers and publishers should not have to modify publications in order to accommodate these sensitivities.
The law of defamation is an important law that professional writers and publishers require a thorough understanding of. This essay first analyses the law by exploring its definition, constitution and application. This essay then analyses four of the most significant defamation cases in Australian legal history in order to extract lessons pivotal to both professional writers and publishers. It is the intention of this essay to argue against the first part of the essay statement, that ‘what constitutes defamation is entirely dependent on the sensitivities of a particular type of person’ by pointing towards components of the law. However, this essay then uses the lessons learned within the case studies to educate professional writers and publishers on the responsibilities that they have in order to be protected by defamation law. Finally, this essay attempts to convey how the defamation law works to protect the professional writer as much as it can harm him.
- Defining the Law
There are a number of significant terms requiring definitions. These terms are defamation, matter and publication. Further, it is important to establish the grounds under which defamation may be claimed and the defences that may be used in order to clear a defendant’s name.
Defamation has been defined by Joseph Fernandez (2011) as being “the unlawful publication by one person that defames another.” Fernandez then defines publication as “the communication of the defamatory matter by any means, to a person other than the defamed person.” Gillooly (1998) defines matter as “anything by which meaning is conveyed” with examples pertaining to the case studies within this essay being newspaper articles, books and television broadcasts, though there are many more. Matter is deemed to be defamatory “if it tends to make the plaintiff be shunned and avoided” (Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581, Slesser LJ, at 587.)
In order for a complainant to launch a defamation case before the courts the law requires them to demonstrate three things (Fernandez). First, they must demonstrate that they were identified, second that the matter was published and third point to the precise defamatory word/s within the publication. Fernandez further explains the court’s approach to words is to apply the standard of the ordinary, reasonable person – that is to ascertain what the ordinary, reasonable person would understand as the meaning of the offending words. However, the law also provides a measure for words deemed to be innuendo; that is words that contain a special meaning to those who receive the publication that have knowledge of certain facts or circumstances that make the matter defamatory.
The Defamation Act 2005 (WA) provides a list of defences to a defamation act. This list includes that the matter is substantially true; that the matter was contained within a publication of public documents; that the matter was contained in a fair report of public proceedings; that it was an occasion of qualified privilege; that the defendant is protected by political qualified privilege; that the matter was an honest opinion; and that the defendant is protected by the defence of Absolute privilege.
- Case Study 1: John Marsden v Amalgamated Television Series Pty Ltd
On 13 March 1995 (Today Tonight) and 7 May 1996 (Witness) the Seven Network aired two stories that labelled prominent Sydney-based lawyer John Marsden a paedophile. Marsden subsequently claimed for defamation against Amalgamated Television Series Pty Ltd with the court case becoming one of the longest defamation cases in history lasting over six years (Gray and Martin 115-136).
Although it came to be well established that Marsden had enjoyed a colourful sexual history it could not be proven that he was indeed a paedophile nor could the Seven Network prove its defence of qualified privilege and ultimately Marsden was awarded damages and court expenses (7:30 Report). Despite the victory, Marsden told Peter Lloyd of The World Today that while he wanted total vindication “no amount of money, no matter what it could be, can compensate me for the anguish, the pain, the humiliation of the past few years. No sum will restore me in any way to the position I was in before these outrageous allegations.”
Despite Marsden winning his court case the result has been analysed as a pyrrhic victory due to the toll it took on Marsden’s reputation and health (Gray and Martin). The evidence against Marsden devalued his reputation due to his own admission of his sexual history as well as Marsden’s behaviour in the court room with Justice David Levine finding that ““on the balance of probabilities” that Marsden had induced a convicted murderer and rapist to persuade a witness “to reconsider his position”” (Sheehan).
As Sheehan argues, the mistake made by Channel Seven’s Peter Manning was not in shaming Marsden as there was sufficient evidence to do so but rather it was in labelling Marsden a pederast. This label is highly specific and required having highly sensitive victims possess the ability to stand up in a court room to testify to this fact. Ultimately, this proved to be an impossibility and Marsden successfully claimed defamation. This case study demonstrates the vital necessity that writers and publishers have in being fully aware of their boundaries and respecting them lest they overstep them.
- Case Study 2: Hore-Lacy v Cleary & Anor
On July 21, 2003 James Ramage killed his wife Julie and subsequently dumped her body in bushland (Kissane). Kissane reported that Ramage consequently contacted his lawyer, Mr Hore-Lacy and met him at a hotel whereby he confessed to the killing. Upon confessing to Hore-Lacy the lawyer contacted another lawyer to advise him. Ramage attempted to defend himself in court by launching a provocation to murder defence insisting that it had been Julie’s sexual deviancy that had driven him to the killing. Instead of being found guilty of murder James Ramage was found guilty of the lesser charge of manslaughter.
In the aftermath of the trial Phil Cleary wrote a book on the case entitled ‘Getting Away with Murder.’ Cleary intended the book to convey what he believed to be fair comment. Of the hotel meeting where Ramage confessed to murdering his wife to Mr Hore-Lacy, Cleary alleged that Mr Hore-Lacy assisted Ramage manufacture the provocation defence that he would later use in the trial (AAP). This allegation, if proven to be true, is professional misconduct, a criminal offence or both. Although police did not believe in the provocation defence and had shared Cleary’s opinion (Rule) it could not be proven as fact. Subsequently Mr Hore-Lacy filed for defamation against Cleary as he believed that Cleary had damaged his professional reputation.
At the completion of the court case the jury awarded Mr Hore-Lacy $600,000 in compensation and $30,000 in exemplary damages (Hagan). Cleary, in writing of the verdict, explained that his fair comment defence failed as Justice Ashley found that Cleary’s book “must be taken as a book of fact rather than opinion” and that Cleary had “found that this was not the case in relation to two particular sets of words used in the book.” This case study demonstrates the meticulous care with which professional writers and publishers must have when presenting facts. It is imperative that only known fact be presented and the manufacturing of facts are to be avoided.
- Case Study 3: Blue Angel Defamation Case
Leo Schofield is one of Australia’s most renowned restaurant critics having been featured by numerous newspaper and magazine publications for well over two decades (Kalina). In 2000 he was awarded a member of the Order of Australia (Australian Government), the following year was awarded the Australian Government Centenary Medal for outstanding service to the Australian arts, culture, heritage and food industry (Australian Government) and in 2002 the French government selected him as a Chevalier de l’Ordre des Arts et des Lettres (Celebrity Speakers).
Melissa Harper holds that Schofield in his position of renowned critic wields the power to “profoundly impact, for good or ill, on the reputation and therefore business of a particular restaurant.” A consequence of this power fell upon Schofield when in 1989 he wrote a scathing review of Marcello Marcobello’s restaurant, the Blue Angel (Newton) which resulted in Marcobello taking Schofield to court for defamation. Fife-Yeomans reported that the “crux of the Blue Angel defamation case was whether the lobster, the garlic prawns and the lemon sole were overcooked or not.” In Marcobello’s mind the strength of the attack contained within the review exceeded fair comment and was an attack on his professional reputation. Newton explains that there are three principles required for a commentary to be considered a fair comment. First, the comment must be based upon fact, second that the comment must be your own honestly held opinion and finally that “it has to be an expression of opinion on an issue or a fact that there is a matter of public interest in.”
At the conclusion of the trial the jury decided that Schofield was indeed guilty of defaming Marcobello and the Blue Angel restaurant. The decision was reached as the defence was unable to satisfy the basic requirements of the court (Allen and Unwin) with the most significant of these being the inability to demonstrate to the court the truth of the facts upon which Schofield’s opinion had been based. There are two lessons to be learned here. First, that evidence must be provided in order to defend the written word and secondly that the professional writer must always consider their prose.
- Case Study 4: Li & Anor v Herald and Weekly Times Pty Ltd & Anor
Unlike the other case studies featured in this essay the victor of the defamation case was the professional writer and publisher. Ferrier Hodgson reported that Ms Abbie Li was a registered doctor of traditional Chinese medicine employed by Forever Young in Collins Street Melbourne. The company advertised services including acupuncture and remedial massage. From mid-2003 and 2004 Herald Sun journalist Keith Moor wrote a series of articles implying that Ms Li had operated Forever Young as an illegal brother, that she was a prostitute in the sense that she received money for sexual services and had been dishonest as she provided false receipts that enabled her clients to claim on their health insurance (Li & Anor v. Herald and Weekly Times & Anor).
Ms Li claimed that these articles had injured her professional reputation and destroyed her business and consequently claimed for defamation (Moor). However, the court case would ultimately become one of the most unsuccessful defamation cases in Australian legal history. Justice Gillard found that the articles did defame Ms Li, however, they were not defamatory against Forever Young and that the defendants could not be found liable because he found the defamatory words to be justified and were in fact proven to be true (Hodgson). At the culmination of the eighteen day trial Justice Gillard ordered Ms Li to pay more than $350,000 for the defendant’s costs and declared that she had no credibility (Ricketson; Uebergang).
The lesson to be learned from this case study is as important as any other. This case study demonstrates that professional writers and publishers must possess the strength of character to stand behind their work when presenting known fact. Not everyone will appreciate or even agree with the written matter but as long as it can be proven to be fact the law is there to protect the professional writer and publisher every bit as much as it is to condemn them when it is not.
In consideration of the defining of the law and each of the case studies contained within this essay it becomes clear that what constitutes defamation in the eyes of the law is far from an individual’s sensitivities. The law categorically states that for defamation to occur the complainant must first prove that they were identified and defamed by published matter. The words contained within the matter must then be seen to injure the reputation of the complainant in the eyes of the common man. It is this component of the law that eradicates the sensitivities of a particular type of person as constituting the law. Each of the four case studies demonstrates the seriousness of the matter required for something to be considered defamatory by the law. The complainant in each case has had their reputation injured severely in the eyes of the common person.
However, this places significant responsibility onto the professional writer and the publisher. Each of the case studies contained within this essay provide professional writers and publishers important lessons that they need to heed. These case studies demonstrate that the law of defamation as presently constituted will protect the innocent party whether that is the writer reporting on known facts or the complainant claiming defamation. The writer needs to be aware of the boundaries that known fact enables them to write within, to respect that boundary, to not manufacture fact and report only known facts that can be demonstrated as such in court, take careful consideration of the written prose and above all to have the strength of character to stand behind their work.
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“7 May 1996.” Witness. Seven Network. Sydney, New South Wales. 7 May 1996.
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Defamation Act 2005 (WA)
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Hore-Lacy v Cleary & Anor 2008 VSC 215
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Marsden v Amalgamated Television Services Pty Ltd 510 (Unreported, Supreme Court of NSW, Levine J, 2001
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Ricketson, Matthew. “You wouldn’t read about it: Everything you wanted to know about media accountability and the Finkelstein inquiry.” Melbourne University. Melbourne University, Melbourne, Victoria. 17 May 2012. Speech.
Rule, Andrew. “When a battle in the village upsets the nature of perspective.” Age [Web] 2 APR 2010, Web 16. Web. 22 Feb. 2013. <http://newsstore.fairfax.com.au/apps/viewDocument.ac;jsessionid=DD9F19ACC37D03924816B63A872AD725?sy=afr&pb=all_ff&xdt=selectRange&dr=1month&so=relevance&sf=text&sf=headline&rc=10&rm=200&sp=brs&cls=190&clsPage=1&docID=AGE100402MT7EM43D10J>
Sheehan, Paul. “Case for the damnation of Marsden.”Sydney Morning Herald [Sydney] 22 May 2006, Online n. pag. Web. 21 Feb. 2013. <http://www.smh.com.au/news/opinion/case-for-the-damnation-of-marsden/2006/05/21/1148150120012.html>.
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Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581, Slesser LJ, at 587.