Law of Communication

This article discusses the Defamation Act 2005 and its provisions for resolving disputes related to communication. It explains the scope of defenses available to defendants and the consequences of defamation. Additionally, it explores the balance between freedom of speech and protection of reputation.

Running head: Law of Communication
Law of Communication

Law of Communication 1
Contents
Part 1 – Problem questions..........................................................................................................................2
Answer to Q1...........................................................................................................................................2
The answer to Q2.....................................................................................................................................4
The answer to Q3........................................................................................................................................5
The answer to Q4.....................................................................................................................................5
Part 2 - Essay Question................................................................................................................................7
The answer to Q5.....................................................................................................................................7
Bibliography...............................................................................................................................................12

Law of Communication 2
Part 1 – Problem questions
Answer to Q1.
As per the Defamation Act 2005, defamation is a communication from one person to another
with an intention to lower the reputation of the third person, where the communicator i.e.
publisher has no legal defense. It aims to strike a balance between the right to freedom of speech
and safeguarding the reputation of a person from the attack which cannot be defended. In order
to make a defamation action succeed, the plaintiff has to prove the below-mentioned points:
1. The communication should defame the other person.
2. The communication should pertain to the plaintiff.
3. The communication should be published to the third person1.
The objects of the act are to make sure that the law of defamation does not impose unreasonable
limits on the freedom of expressing the feeling and discussion and publication of materials of
public interest. It also aims at providing effective remedies to persons whose reputation is being
harmed through the publication of defamatory matter. It promotes speedy and non-litigious ways
to resolve the disputes pertaining to the publication of defamatory matter2.
Part 3 of the act pertains to the resolution of civil disputes without any litigations. Section 12- 19
of the act pertains to the application of amendments by the publisher who publishes the matter in
question which may be defamatory to another person. These provisos may be used to resolve the
matter in an arbitrary manner. With the help of Division 1, ‘offers to make amends ‘ it allows
1 David Rolph ,Reputation, Celebrity and Defamation Law(London: Routledge,2016) 100
2 NSW ,Defamation Act 2005 No 77(6 September 2013) < https://legislation.nsw.gov.au/inforce/1517ed3d-c5e2-
ebf3-ed3b-d890a4e77f6b/2005-77.pdf>

Law of Communication 3
the publisher to make an offer of settlement to the aggrieved person. The publisher may offer to
make amendments to the person whose reputation has been defamed.
The offer may be related to the matter in question or is limited to any defamatory charges which
the publisher accepts in relation to that matter. If two or more persons had published the matter,
then the offer to make amends by either or more of them shall not affect the liability of the
other persons . However, the offer to make amends cannot be made after 28 days of giving the
concerned notice in writing by the aggrieved person to the publisher along with serving a
defense by the aggrieved person against the publisher.
The offer to make amends must be in writing and identifiable as an offer to make amends under
the division. If it is limited to some defamatory allegations, then it must particularly state the
accusations regarding which the offer is limited. It must also comprise of an offer to publish a
correction of the particular matter along with making an offer to take reasonable steps to tell the
other person that it may be defamatory to the aggrieved person.
However, if the publisher does not want to make the offer to make amends, then he may resort to
the defenses available to him under division 2 Defenses of the act. Section 25 justification
suggests that the publisher may resort to defenses of justification in which he can prove that
defamatory accusations are proved to be true regarding the plaintiff. Section 26 pertains to
defense of contextual truth which relates to proving that the defamatory accusations are true and
they will not harm the reputation of the plaintiff as they are substantially true.

Law of Communication 4
So, as per the given case, George has surely defamed Maria in his press release and he may
either resort to the offers to make amends under section12-19 or may resort to defenses available
to him under section 24-33 of Defamation Act, 20053.
The answer to Q2.
In the given case, Maria had written on her blog regarding the affairs of George and his ex-wife
Baroness. It is a clear case of defamation and breach of confidentiality by intruding into one’s
personal life. Defamation Act 2005 suggests that if there is a publication to a person other than
the plaintiff which contains some extrinsic facts which the reader is aware of and enables them to
recognize the plaintiff. Firstly, it is identifiable from the publication that what is being discussed
about the plaintiff and if the accusations arising from the publications are defamatory4.
A publication is defamatory if they are intended to lower the reputation of the plaintiff in front of
the right thinking members of the society and it has the capability to put the plaintiff in the state
of being avoided. It can also be called defamatory if it were to injure the goodwill of the plaintiff
through exposing her to contempt, ridicule or hatred.
Additionally, the imputations arise from the natural and ordinary meaning of the words or
implications with reference to popular and false allusions.In this case, Maria has breached the
confidentiality of Baroness as she had openly published the details about the personal life of
George and his ex-wife Baroness on her blog5.
3 Matthew Nied , Damage Awards in Internet Defamation Cases: Reassessing Assumptions About the Credibility of
Online Speech (2014) < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1708586>
4Lauren Guicheteau ,’ What Is the Media in the Age of the Internet: Defamation Law and the Blogosphere’ (2013) 8
Washington Journal of law, technology and arts .
5Andrew McDonald and Greg Terrill ,Open Government: Freedom of Information and Privacy(Springer, 2016)
100.

Law of Communication 5
The answer to Q3.
As per Part -4 Litigations of Civil Disputes of the Defamation Act 2005, section 24-33 provides
the scope of defenses for Maria. Section 25 suggests that the defendant can prove the truth of the
defamatory imputations carried on the plaintiff.Section 26 suggests that there can be a defense of
contextual truth. If the defendant proves that the defamatory imputations which are many in
number are substantially true and they do not further harm the reputation of the plaintiff as the
contextual imputations are substantially true.
Another defense available to Maria is Defense of honest opinion under section 31 which states
that if it is proved by the defendant that the matter was expressed as an opinion rather than a
statement of fact and it is based on a proper material.
The consequences to be borne by Maria in this regard pertain to section 34-39 of the Defamation
Act2005. As per section 34 of the act, the court must make sure that there is a rational
relationship between the harm caused and the number of damages to be awarded. Section 35 of
the act pertains to damages for non-economic loss to the plaintiff. The maximum non-economic
loss which may be awarded in the defamation proceedings to the plaintiff are $250,000 or an
amount which is applicable at the time on which damages are being awarded6.
So, in this case, Maria can defend herself with the help of section 24-33 and consequences to be
borne by her pertain to section 35 of the act.
The answer to Q4.
6 George Williams ,’The Legal Assault on Australian Democracy’(2016) 16 QUT Law Review 19 .

Law of Communication 6
Freedom of Information Act 19827is applicable for accessing the information possessed by the
Government of Victoria and other bodies which are constituted under the law of Victoria for the
purpose of making available the public information about the operations of agencies and
making sure that the rules and practices which are affecting the public should be readily
available to them . It creates a general right for accessing the information in a documentary form
which is possessed by the Ministers and agencies for safeguarding the public interests and the
information related to personal and commercial affairs of the persons in respect of whom the
data is collected and withheld by the agencies8.
However, section 33 of the Freedom of Information Act 19829 pertains to the exempted
documents which are related to the personal privacy of the person. A document is an exempted
document if it involves the unreasonable disclosure regarding the information related to personal
affairs of the person. Also, subsection 2 suggests that the provisos of subsection 1 do not impact
if the request is made by a person regarding the information which is related to him/her in that
document.10
Subsection 9 of section 33 suggests that information related to the personal affairs of any person
comprises of the address and location of that person or from which the address, location or
identity can be easily determined11.
7 Mike Larsen and Kevin Walby ,Brokering Access: Power, Politics, and Freedom of Information Process in
Canada(UBC Press,2012)
8 Taewoo Nam ,’Freedom of information legislation and its impact on press freedom: A cross-national study’(2012)
29 Government Information Quarterly 521 .
9 Paul Marett ,Information Law in Practice(London: Routledge,2018)
10 Kevin Walby and Mike Larsen ,’ Access to Information and Freedom of Information Requests Neglected Means
of Data Production in the Social Sciences’ (2012) 18 Sage Publications .
11 Nigel Bowles and James T. Hamilton ,Transparency in Politics and the Media: Accountability and Open
Government(I.B.Tauris ,2013).

Law of Communication 7
So, the decision maker should take into account the motives of Maria as she had requested for
travel records of George while making the decision to grant her the access of those documents as
per section 33 of Freedom of Information Act 198212.
Part 2 - Essay Question
The answer to Q5.
“Should there be greater protection for the right to free speech as compared to defamation
act 2005? “
Freedom of speech was formulated by the International Covenant on Civil and Political Rights
(ICCPR). Article 19 states that everyone has the right to hold their opinions without being
interfered. They have the right to freedom of expressing themselves and it includes the freedom
12 Suellen Murray ,’Compassion and Compliance: Releasing Records to Care-Leavers under Privacy and Freedom of
Information Legislation’ (2013) 13 Social Policy and Society 493.

Law of Communication 8
to receive, seek and impart the information and ideas of all the kinds. It can be disseminated in
oral or written manner13.
In this regard, the exercise of rights should be accompanied with specific duties and
responsibilities. It is necessary to respect the integrity and goodwill of others and the national
security, public health, their morals and order should be maintained. General comment 34
mentions that freedom of expression and opinion. The freedom to access the information and
freedom to express in a democratic society are also included in this regard14.
On the other hand Defamation Act 2005 pertains to the striking of a balance between the right to
freedom of speech and protection of the reputation of indefensible attack.For defamation action
to succeed, the person complaining of defamation has to prove that the communication is
intended to defame the plaintiff and it is published in such a manner which would identify him
and has been published to the third person15.
These rights exist under the law to the extent they do not harm the reputation of a genuine person
and for this certain remedies have been offered to the plaintiffs for the damages being done to
them. The Defamation Act 2005 provides that the defendants can offer to make amends in an
arbitrary manner. It provides for the settlement of disputes. It can be made to the plaintiff up to
28 days after the publisher of the defamatory information has been given the notice or in case the
defense has been served16.
13 Mari J Matsuda, Public Response to Racist Speech: Considering the Victim’s Story(NY: Routledge,2018) 100.
14 Ian Cram, Contested Words : Legal Restrictions on Freedom of Speech in Liberal Democracies(London:
Routledge,2016) 100.
15 Erik Descheemaeker, Three Errors in the Defamation Act 2013’(2013) 6 Journal of European Tort Law 24.
16 Keyzer Patrick, Johnston Jane , Pearson Mark, Rodrick Sharon and Wallace Anne,’ The courts and social media:
what do judges and court workers think?(2013) 25 Judicial Officers Bulletin 47.

Law of Communication 9
The offer to make amends must be in writing and include the offer to publish rational correction
of the matter and an offer must be made to compensate the expenses incurred by the aggrieved
person. It must also comprise of any other offer to make good the harm which is sustained by the
aggrieved person. If the offer is being accepted by the plaintiff and then he cannot continue with
the defamation proceedings. If the publisher makes a rational offer and it is not accepted by the
plaintiff, then it shall constitute a defense of an action for defamation.
In case of damages, the defendant has to pay $250,000 to the plaintiff. In case of payment of
excessive amount above this cap, the court will not permit until it is satisfied that the
circumstances allow establishing such intensified damages.
A balance should be achieved between the two competing rights as under the freedom to
information act, the facility to retrieve the information should not be misused as it is provided to
retrieve the administrative information for the persons to whom it is associated with or to whom
it is beneficial. The freedom to information law has been formulated to facilitate the retrieval of
information which is of administrative nature rather than of personal nature.
If this law is misused by people to retrieve the personal information so that they can publicize it
to defame the other person then it can be in contradiction to the interest of the public. It can also
raise security issues and lessen the trust which the public has on the government. So, the
information act should safeguard the public interest and the authorizing officers should prudently
allow the outflow of information from the government to the general public.
So, the Defamation Act 2005 has been passed to safeguard the interest of the public in this
regard. It protects the confidentiality of the public by providing them the right to sue for damages
done to their reputation by the defendants. It also provides the arbitrary measures to the

Law of Communication 10
defendants by making the offer to make amends. So, there should be the perfect balance between
the two laws for the benefit of the general public17.
There should not be a greater protection for the right to freedom of speech as it can be misused
by the general public by passing derogatory comments to others whom they are hostile with. It
would lead to loss of trust in the government amongst the general public. It would further lead to
reluctance amongst the people in disclosing their information to the governmental agencies
which would be unfair for the government and the public as a whole.
So, there should be some limits to the freedom of speech.It should not safeguard lies and illegal
dishonest comments on the other person. If someone is deliberately telling lies, then he should be
sued in the courts. Secondly, nobody should be given a right to pass offensive remarks and
personal insults which could lead to violence. Things which could cause severe emotional
distress should be avoided in this regard.
Furthermore, nobody should have the right to politically comment which could harm the
reputation of a leader in the society. It is essential to protect the integrity of the leaders in some
circumstances. So, it is not absolute like any other human right. It carries some responsibilities.
With the increase of the defamation cases, more people find themselves defending defamation
actions in the courts.
Hence to conclude, it can be said that freedom of speech is essential but only to some extent. The
restrictions require the examination of the content of speech in a rigid manner. The restrictions
may apply to certain viewpoints. In this regard, the time, place and manner should be considered.
The time, place and manner should withstand immediate scrutiny. The restrictions must be
17 Andrew T Kenyon, Defamation Comparative Law and Practice(Great Britain: UCLPress,2006)11.

Law of Communication 11
neutral in content and be narrowly tailored. They should serve as a significant government
interest and should leave ample options for communication.

Law of Communication 12
Bibliography
Rolph David ,Reputation, Celebrity and Defamation Law(London: Routledge,2016) 100
NSW , Defamation Act 2005 No 77(6 September 2013) <
https://legislation.nsw.gov.au/inforce/1517ed3d-c5e2-ebf3-ed3b-d890a4e77f6b/2005-77.pdf>
Latiff Abd and Imma Dzaa , Social networking and blogs among students: A threat or
blessing(2012)< http://repo.uum.edu.my/6828/>
Nied Matthew, Damage Awards in Internet Defamation Cases: Reassessing Assumptions About
the Credibility of Online Speech (2014) < https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1708586>
Guicheteau Lauren ,’ What Is the Media in the Age of the Internet: Defamation Law and the
Blogosphere’ (2013) 8 Washington Journal of law, technology and arts .
McDonald Andrew and Terrill Greg, Open Government: Freedom of Information and
Privacy(Springer, 2016) 100.
Williams George ,’The Legal Assault on Australian Democracy’(2016) 16 QUT Law Review 19 .
Larsen Mike and Walby Kevin ,Brokering Access: Power, Politics, and Freedom of
Information Process in Canada(UBC Press,2012)
Nam Taewoo,’Freedom of information legislation and its impact on press freedom: A cross-
national study’(2012) 29 Government Information Quarterly 521
Marett Paul ,Information Law in Practice(London: Routledge,2018)

Law of Communication 13
Bowles Nigel and Hamilton James T. ,Transparency in Politics and the Media: Accountability
and Open Government(I.B.Tauris ,2013).
Walby Kevin and Larsen Mike ,’ Access to Information and Freedom of Information Requests
Neglected Means of Data Production in the Social Sciences’ (2012) 18 Sage Publications .
Murray Suellen ,’Compassion and Compliance: Releasing Records to Care-Leavers under
Privacy and Freedom of Information Legislation’ (2013) 13 Social Policy and Society 493.
Matsuda Mari J, Public Response to Racist Speech: Considering the Victim’s Story(NY:
Routledge,2018) 100.
Cram Ian, Contested Words : Legal Restrictions on Freedom of Speech in Liberal
Democracies(London: Routledge,2016) 100.
Descheemaeker Erik , Three Errors in the Defamation Act 2013’(2013) 6 Journal of European
Tort Law 24.
Patrick Keyzer , Jane Johnston , Mark Pearson, Sharon Rodrick and Anne Wallace,’ The courts
and social media: what do judges and court workers think?(2013) 25 Judicial Officers Bulletin
47.
Kenyon Andrew T , Defamation Comparative Law and Practice(Great Britain:
UCLPress,2006)11.