2. 1/06/2015Copyright, Dan Svantesson 20021 Law 105 Communication and the law

3. 1/06/2015Copyright, Dan Svantesson 20022 Confidentiality: Prevents media from accessing information Protects media’s sources

4. 1/06/2015Copyright, Dan Svantesson 20023 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.

5. 1/06/2015Copyright, Dan Svantesson 20024 Confidentiality: Disclosure to a limited group of people does not necessarily deprive the information of its confidential nature.

6. 1/06/2015Copyright, Dan Svantesson 20025 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?

7. 1/06/2015Copyright, Dan Svantesson 20026 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

8. 1/06/2015Copyright, Dan Svantesson 20027 Confidentiality: People must accept the risks inherent in their chosen way of communication. REMEMBER: E-mails are as private as a postcard!!!!

9. 1/06/2015Copyright, Dan Svantesson 20028 Confidentiality: Do not publish information that it is obvious that was meant to be confidential, and it is “inconceivable” that the person who first communicated the information would allow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.

10. 1/06/2015Copyright, Dan Svantesson 20029 Confidentiality: actual (threat of) unauthorised use of the confidential information

11. 1/06/2015Copyright, Dan Svantesson 200210 Confidentiality: 1) The information was already in the public domain

12. 1/06/2015Copyright, Dan Svantesson 200211 Confidentiality: 1) The information was already in the public domain 2) Justified disclosure

13. 1/06/2015Copyright, Dan Svantesson 200212 Confidentiality: “just cause or excuse” i.e. the public interest in publication is greater than the public interest in maintaining the confidence.

14. 1/06/2015Copyright, Dan Svantesson 200213 Confidentiality: Public interest v. interesting to the public

15. 1/06/2015Copyright, Dan Svantesson 200214 Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest”

16. 1/06/2015Copyright, Dan Svantesson 200215 Confidentiality: Public interest v. interesting to the public The media benefits from expanding the “public interest” Media not always the best option

17. 1/06/2015Copyright, Dan Svantesson 200216 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

18. 1/06/2015Copyright, Dan Svantesson 200217 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

19. 1/06/2015Copyright, Dan Svantesson 200218 Confidentiality: 1) The information was already in the public domain 2) Justified disclosure 3) Whistleblower protection

20. 1/06/2015Copyright, Dan Svantesson 200219 Confidentiality: Remedies: Interlocutory injunction (Lennon case)

21. 1/06/2015Copyright, Dan Svantesson 200220 Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction

22. 1/06/2015Copyright, Dan Svantesson 200221 Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction Account of profits

23. 1/06/2015Copyright, Dan Svantesson 200222 Confidentiality: Remedies: Interlocutory injunction (Lennon case) Permanent injunction Account of profits Damages

24. 1/06/2015Copyright, Dan Svantesson 200223 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)

25. 1/06/2015Copyright, Dan Svantesson 200224 Privacy: “The interest of a person in sheltering his or her life from unwanted interference or public scrutiny.”

26. 1/06/2015Copyright, Dan Svantesson 200225 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.”

27. 1/06/2015Copyright, Dan Svantesson 200226 Privacy: Defamation Confidentiality Trespass Nuisance Data protection

28. 1/06/2015Copyright, Dan Svantesson 200227 Privacy (Trespass): “unlawful interference with land which is in the possession of another”

29. 1/06/2015Copyright, Dan Svantesson 200228 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

30. 1/06/2015Copyright, Dan Svantesson 200229 Privacy (Trespass - Remedies): Damages Injunction (trespass) Injunction (subsequent publication)

31. 1/06/2015Copyright, Dan Svantesson 200230 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

32. 1/06/2015Copyright, Dan Svantesson 200231 Privacy (Trespass - Remedies): Damages Injunction (trespass) Injunction (subsequent publication) Self-help Criminal sanctions

33. 1/06/2015Copyright, Dan Svantesson 200232 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

34. 1/06/2015Copyright, Dan Svantesson 200233 Privacy (Nuisance): Telephone calls Surveillance from other premises or the air

35. 1/06/2015Copyright, Dan Svantesson 200234 Privacy (Nuisance - Remedies): Damages Injunction (nuisance) Injunction (subsequent publication) Self-help

36. 1/06/2015Copyright, Dan Svantesson 200235 Scenario : “A lies to B in saying that their common friend, C, knowingly sells rotten apples.”

37. 1/06/2015Copyright, Dan Svantesson 200236 Legal Areas: Defamation Injurious falsehood

38. 1/06/2015Copyright, Dan Svantesson 200237 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’.

39. 1/06/2015Copyright, Dan Svantesson 200238 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)

40. 1/06/2015Copyright, Dan Svantesson 200239 Is the plaintiff identified? MAIN RULE: “of and concerning the plaintiff”

41. 1/06/2015Copyright, Dan Svantesson 200240 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?”

42. 1/06/2015Copyright, Dan Svantesson 200241 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.

43. 1/06/2015Copyright, Dan Svantesson 200242 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.

44. 1/06/2015Copyright, Dan Svantesson 200243 “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)

45. 1/06/2015Copyright, Dan Svantesson 200244 Absolute Privilege: Communication between spouses – exists in common law, but not expressly in Qld & Tas (undecided)

46. 1/06/2015Copyright, Dan Svantesson 200245 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.)”

47. 1/06/2015Copyright, Dan Svantesson 200246 (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.

48. 1/06/2015Copyright, Dan Svantesson 200247 (Fair) Comment: S. 30 – “based upon proper material for comment” S. 31 – “public interest”

49. 1/06/2015Copyright, Dan Svantesson 200248 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.

50. 1/06/2015Copyright, Dan Svantesson 200249 Remedies: Damages Injunctions

51. 1/06/2015Copyright, Dan Svantesson 200250 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)