2015 Volume 20 Issue 3
Articles
A ‘serious’ response to trivial defamation claims: An examination of s 1(1) of the Defamation Act 2013 (UK) from an Australian perspective
Phoebe J Galbally
Abstract
This article describes the reforms instituted by s 1(1) of the Defamation Act 2013 (UK). It tracks the common law developments leading to the enactment of s 1(1) of the Defamation Act 2013 (UK), focussing on the principles established in Jameel v Dow Jones and Thornton v Telegraph Media Group. Defamation Act 2013 (UK) s 1(1) is then contrasted with the Australian triviality defence, noting their differences in practice. In particular, it is asserted that the Australian triviality defence sets an excessively onerous burden on defendants in defamation actions, fails to give sufficient regard to out-of-court dispute resolution, and can generate procedural inefficiencies due to its consideration in the latter stages of a trial. Ultimately, it is argued that a legislative threshold test for triviality, such as that which is contained in the Defamation Act 2013 (UK) s 1(1), would make a positive contribution to Australian defamation procedure.
This article describes the reforms instituted by s 1(1) of the Defamation Act 2013 (UK). It tracks the common law developments leading to the enactment of s 1(1) of the Defamation Act 2013 (UK), focussing on the principles established in Jameel v Dow Jones and Thornton v Telegraph Media Group. Defamation Act 2013 (UK) s 1(1) is then contrasted with the Australian triviality defence, noting their differences in practice. In particular, it is asserted that the Australian triviality defence sets an excessively onerous burden on defendants in defamation actions, fails to give sufficient regard to out-of-court dispute resolution, and can generate procedural inefficiencies due to its consideration in the latter stages of a trial. Ultimately, it is argued that a legislative threshold test for triviality, such as that which is contained in the Defamation Act 2013 (UK) s 1(1), would make a positive contribution to Australian defamation procedure.
Abstract
Amendments to the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’) in 2014 heralded the introduction of ‘special intelligence operations’ (‘SIOs’), covert operations that grant Australian Security Intelligence Organisation (‘ASIO’) operatives immunity from certain civil and criminal offences. Among the amendments was the insertion of s 35P into the ASIO Act, which makes it a criminal offence to disclose information about SIOs, an offence punishable by between five and 10 years’ imprisonment. Media organisations and lawyer organisations have described s 35P as an attack on free speech and media freedom and as being detrimental to democracy. As there is no right to free speech in Australia, this article explores whether s 35P is an impermissible burden on the Australian Constitution’s implied freedom of political communication. This article contends that the legislative purpose of legislative provisions should be construed in as much detail as possible to better facilitate the enquiry as to whether the measure is ‘reasonably appropriate and adapted’, or proportionate, to meet its ends. Drawing on the recent High Court case Tajjour v New South Wales),1 this article also explores whether a third proportionality test, ‘strict proportionality’, could be applied, in addition to the ‘suitability’ and ‘reasonable necessity’ tests.
Amendments to the Australian Security Intelligence Organisation Act 1979 (Cth) (‘ASIO Act’) in 2014 heralded the introduction of ‘special intelligence operations’ (‘SIOs’), covert operations that grant Australian Security Intelligence Organisation (‘ASIO’) operatives immunity from certain civil and criminal offences. Among the amendments was the insertion of s 35P into the ASIO Act, which makes it a criminal offence to disclose information about SIOs, an offence punishable by between five and 10 years’ imprisonment. Media organisations and lawyer organisations have described s 35P as an attack on free speech and media freedom and as being detrimental to democracy. As there is no right to free speech in Australia, this article explores whether s 35P is an impermissible burden on the Australian Constitution’s implied freedom of political communication. This article contends that the legislative purpose of legislative provisions should be construed in as much detail as possible to better facilitate the enquiry as to whether the measure is ‘reasonably appropriate and adapted’, or proportionate, to meet its ends. Drawing on the recent High Court case Tajjour v New South Wales),1 this article also explores whether a third proportionality test, ‘strict proportionality’, could be applied, in addition to the ‘suitability’ and ‘reasonable necessity’ tests.
‘Bad faith’ and ‘rights or legitimate interests’ under domain name law — emerging themes from the UDRP and auDRP
Alpana Roy and Althaf Marsoof
Abstract
The Uniform Domain Name Dispute Resolution Policy (‘UDRP’) establishes the international framework for the resolution of domain name disputes in the generic top level domains (‘gTLDs’) — such as .com, .net, .org. National authorities are responsible for dispute resolution of country code top-level domains (‘ccTLDs’) — such as .au. In Australia, the relevant local authority for the administration of ccTLDs is .au Domain Administration Ltd (‘auDA’), and the relevant local policy governing .au domain name disputes is the .au Dispute Resolution Policy (‘auDRP’). The auDRP is an adaptation of the international UDRP. The purpose of both the UDRP and the auDRP is to provide an alternative to litigation for the quicker and cheaper resolution of domain name disputes, and to date both policies have proven to be an effective dispute resolution mechanism. While the auDRP is based on the UDRP, there are some significant differences between the policies. The UDRP system has attracted significant comment by various scholars — despite its fairly brief history. By contrast, there has been very little discourse on the auDRP and Australian domain name law to date — although it has been in force for almost as long as the UDRP. The aim of this article is to redress this deficiency and focus on the auDRP as a distinct and developing body of Australian law, and to explore some of the emerging themes arising from auDRP decisions to date. Specifically, the authors have identified two specific themes that will be the subject of this article. First, the authors will examine the way in which there has been a merging of the bad faith limb under international and Australian domain name law, where UDRP panels have circumvented the narrower scope of para 4(a)(iii) by interpreting this provision as if it were framed in the same way the corresponding provision of the auDRP has been worded. This broader interpretation has been particularly notable in two types of UDRP decisions: ‘non use’ decisions, and the decisions involving ‘subsequent bad faith use’. Secondly, the article will explore in detail the link between the second limb of para 4(a) dealing with rights or legitimate interests and the third limb dealing with bad faith — with a particular focus on how auDRP panels have interpreted these two provisions. Finally, given that both UDRP and auDRP decisions reveal an inconsistent and unpredictable pastiche of results, the authors conclude by arguing for the importance of establishing an appeals process within the auDRP and UDRP systems.
The Uniform Domain Name Dispute Resolution Policy (‘UDRP’) establishes the international framework for the resolution of domain name disputes in the generic top level domains (‘gTLDs’) — such as .com, .net, .org. National authorities are responsible for dispute resolution of country code top-level domains (‘ccTLDs’) — such as .au. In Australia, the relevant local authority for the administration of ccTLDs is .au Domain Administration Ltd (‘auDA’), and the relevant local policy governing .au domain name disputes is the .au Dispute Resolution Policy (‘auDRP’). The auDRP is an adaptation of the international UDRP. The purpose of both the UDRP and the auDRP is to provide an alternative to litigation for the quicker and cheaper resolution of domain name disputes, and to date both policies have proven to be an effective dispute resolution mechanism. While the auDRP is based on the UDRP, there are some significant differences between the policies. The UDRP system has attracted significant comment by various scholars — despite its fairly brief history. By contrast, there has been very little discourse on the auDRP and Australian domain name law to date — although it has been in force for almost as long as the UDRP. The aim of this article is to redress this deficiency and focus on the auDRP as a distinct and developing body of Australian law, and to explore some of the emerging themes arising from auDRP decisions to date. Specifically, the authors have identified two specific themes that will be the subject of this article. First, the authors will examine the way in which there has been a merging of the bad faith limb under international and Australian domain name law, where UDRP panels have circumvented the narrower scope of para 4(a)(iii) by interpreting this provision as if it were framed in the same way the corresponding provision of the auDRP has been worded. This broader interpretation has been particularly notable in two types of UDRP decisions: ‘non use’ decisions, and the decisions involving ‘subsequent bad faith use’. Secondly, the article will explore in detail the link between the second limb of para 4(a) dealing with rights or legitimate interests and the third limb dealing with bad faith — with a particular focus on how auDRP panels have interpreted these two provisions. Finally, given that both UDRP and auDRP decisions reveal an inconsistent and unpredictable pastiche of results, the authors conclude by arguing for the importance of establishing an appeals process within the auDRP and UDRP systems.
Refusing defeat: A final call for the revival of the Polly Peck defence
Nicholas Sinanis
Abstract
Australia is an interesting enclave of defamation jurisprudence. It is particularly interesting in respect of the so-called ‘Polly Peck’ defence. It can be traced to two landmark English decisions: Lucas-Box v News Group Newspapers and Polly Peck (Holdings) v Trelford. Broadly speaking, ‘Polly Peck’ defends a defamation claim by relying on defamatory meaning that differs from the meaning pleaded by the plaintiff. Australian appellate judges have been quite skeptical about it. Following some critical obiter dicta in Chakravarti v Adelaide Newspapers Ltd, the defence has been substantially modified. In 2000, the Victorian Court of Appeal replaced it with the more confined ‘Hore-Lacy’ approach. This article argues for the full restoration of the Polly Peck methodology. In particular, it argues for Australian courts to once again recognise the now critically endangered ‘common sting’ plea. It does so by reviving the antipodean debate around the permissibility of alternative meaning pleas. Our fixations on the plaintiff’s pleaded imputations, as well as our fears of ‘roving inquiry’ have not been good reasons for abandoning Polly Peck.
Australia is an interesting enclave of defamation jurisprudence. It is particularly interesting in respect of the so-called ‘Polly Peck’ defence. It can be traced to two landmark English decisions: Lucas-Box v News Group Newspapers and Polly Peck (Holdings) v Trelford. Broadly speaking, ‘Polly Peck’ defends a defamation claim by relying on defamatory meaning that differs from the meaning pleaded by the plaintiff. Australian appellate judges have been quite skeptical about it. Following some critical obiter dicta in Chakravarti v Adelaide Newspapers Ltd, the defence has been substantially modified. In 2000, the Victorian Court of Appeal replaced it with the more confined ‘Hore-Lacy’ approach. This article argues for the full restoration of the Polly Peck methodology. In particular, it argues for Australian courts to once again recognise the now critically endangered ‘common sting’ plea. It does so by reviving the antipodean debate around the permissibility of alternative meaning pleas. Our fixations on the plaintiff’s pleaded imputations, as well as our fears of ‘roving inquiry’ have not been good reasons for abandoning Polly Peck.
Open narrowcasting radio: A worthwhile niche
Professor Michael Fraser and William Renton
Abstract
Open narrowcasting radio services were introduced with the passage of the Broadcasting Services Act 1992 (Cth), providing services and programming with narrow appeal or reach. This article examines aspects of the regulatory framework for open narrowcasting radio in Australia, focusing on the capacity of this regulatory framework to deliver broadcasting services that are tailored to special interest groups. It will be argued that open narrowcasting radio services play an important role in the public sphere, but that there are certain aspects of the regulatory framework that may compromise their effectiveness. This article seeks to promote further research into open narrowcasting services ahead of an expected policy review in 2018, which will consider fundamental issues regarding the future of open narrowcasting services in a converged communications environment.
Open narrowcasting radio services were introduced with the passage of the Broadcasting Services Act 1992 (Cth), providing services and programming with narrow appeal or reach. This article examines aspects of the regulatory framework for open narrowcasting radio in Australia, focusing on the capacity of this regulatory framework to deliver broadcasting services that are tailored to special interest groups. It will be argued that open narrowcasting radio services play an important role in the public sphere, but that there are certain aspects of the regulatory framework that may compromise their effectiveness. This article seeks to promote further research into open narrowcasting services ahead of an expected policy review in 2018, which will consider fundamental issues regarding the future of open narrowcasting services in a converged communications environment.