2015 Volume 20 Issue 4

Abstract

The number of cases of defamation by social media is growing. This article examines the principles of assessment of damages as they apply to those cases. In particular, the article examines the concept of the ‘grapevine effect’: a metaphor used to explain the basis for recovery of general damages for defamation. The grapevine effect has been deployed to notable effect in recent cases of publication by social media. The article argues that the role of the ‘grapevine effect’ reflects the purposes of awards of damages for defamation in light of the unique characteristics of social media.

Abstract

The New South Wales Court of Appeal decision in O’Shane v Harbour Radio exposes a number of issues involved in judicial officers suing for defamation. While the majority found that Magistrate O’Shane was not barred from bringing a defamation claim against radio host Alan Jones, the minority held that it should be disallowed because of public policy reasons. This paper proposes that the policy reasons in favour of barring judicial defamation suits can be invoked to establish a novel concept of ‘judicial reputation’. Borrowing from existing jurisprudence in relation to ‘governmental reputation’, a person should not have capacity to sue in defamation in order to protect their judicial reputation because this type of reputation is incompatible with democratic principles of freedom of speech. Having regard to the unique position judicial officers are in, in that they effectively embody the court, and the public nature of the defendant’s wrong in publishing words criticising them, it can be said that a personal suit to protect judicial reputation is incompatible with the principles of defamation law.

Abstract

The imputations said by the plaintiff to be conveyed by allegedly defamatory matter have a preternatural importance in defamation litigation in Australia — much more so than in other common law jurisdictions. The imputations, as pleaded in the statement of claim, frame the battleground between the parties, and operate as a curb on the defences available to publishers. Worthy plaintiffs can fail at trial because of defects in their pleaded imputations. Correlatively, a publisher’s fate can rest in the competence with which the plaintiff’s imputations have been drafted. The crafting of imputations is thus fundamental to the skillset of the defamation practitioner. This paper catalogues the applicable principles, potential pitfalls and practical considerations that need to be mastered in order to guide the formulation of elegant imputations in defamation pleadings.

Abstract

This paper examines the implications of a non-justiciable constitution on freedom of expression in China. It considers how the competing interests of the constitutional right to reputation and the right to freedom of expression are resolved in the application of two major defences — ie, truth and fair comment — in defamation lawsuits, and the implications for protecting media freedom in China. Given that the Chinese Constitution itself is non-justiciable, the principles of balancing and proportionality are undeveloped in Chinese defamation law, and no approach of resolving the competing interests of constitutional rights has yet developed in Chinese legal theories, the proper balance between two rights in the Chinese context requires not only judicial reform but also the development of legal theories and judicial practices. For the media to effectively claim the ‘truth’ and ‘fair comment’ defences, consistent and clear guidance regarding the burden of proof and the standards of what constitutes the ‘basic’ truth and ‘fairness’ of comment is needed from China’s Supreme People’s Court. Chinese courts have held that the protection of confidential sources is a right of the individual source and have tested it against the plaintiff’s right to a fair trial. Courts may need to consider including public interest as an overriding element in deciding whether to disclose the identity of a confidential source.