Preventing Legal Issues in Publishing and Online Reviews

The given scenario involves the identification of victim, accused, and report of confidential facts, which may create legal problems for the organization. To avoid legal issues, it is recommended that the publication house take care while reporting sensitive information, maintaining secrecy of identity, and not making assumptions about guilt or innocence. In case of online reviews, media law creates obligations to ensure the quality of reviews, and any negative review that may affect an entity's reputation or business comes under risk of defamation. To defend against such claims, it is essential to take reasonable care to prevent publication and exercise effective control over published content.

Table of Contents
Scenario – 1:................................................................................................................................................2
Scenario – 2:................................................................................................................................................3
Scenario – 3:................................................................................................................................................5
Reference:...................................................................................................................................................7
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Scenario – 1:
The freedom of speech in Australia is not free as everyone think of it. The Constitution of
Australia grants freedom of political speech. The freedom of political speech entitles citizen of
country to make positive as well as negative comment over political decision. The freedom of
speech regarding political comment is important pillar of free expression. In this context it is
important to note that the scope of right of freedom of expression particularly political comments
is not wider as one have thought of it. The person working in the government department has
more burdens in this context. It is true to say that the right allows free expression of political
views and working of government; it must be exercised with due care. Irresponsible comment
may attract legal consequences. The political comment is also subject o defamatory law hence
care must be taken to avoid any legal issue under defamation law.
In context of comment by PR office of the government organization, the main medial law issue
arises is of defamation, suit for damages for loss of reputation and right of freedom of expression
of political communication under Constitution.
The Australian Constitution grants right to make free political comments and restrict legislature
to enact any law limiting this right. The comment made against government can be taken under
freedom to express political communication. The comment posted by person relates with the
political affairs. It relates with policies implemented by government. Thus, it can be considered
as political communication notwithstanding anything that comment is in favour or criticizing
government policies. This can be considered as comments made in exercise of right to have free
political freedom. This can be taken as defence. However there are many court precedents which
may operate against the right to express free political communication.
It is important to note that person working under government department is under obligation to
follow rules and regulation. He must take reasonable care that his efforts do not harm
government adversely.
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In Lange v Australian Broadcasting Corp, court has considered issue relating to freedom of
political comment in depth. The court held that the right to express political view must be viewed
in broader sense. The court pointed out that the right is personal right; constitution does not grant
a personal right to freedom of political communication that an individual can exercise. The
constitution; rather provides restriction on legislative action that may curtails freedom of political
communication. It cannot override person obligation that a men is obliged to due under some
statues or code of conduct. The same was then adopted in Gaynor v Chief of the Defence Force.
This makes it clear that government employees are under obligation to honour their code of
conduct first and they cannot take shelter of freedom of expression to cover their breach of duty.
In this it is recommended that the any political communication cannot be made in personal
capacity. The analysis of court decision revels that the right of free expression of political
communication is not personal makes it clear that any political comment having adverse affect
on government can be taken as ground to initiate legal action against person making it. However,
the language used in the comment must be decent in manner and it should not be defamatory. It
can be healthy critics of government policies. This may help journalist to publish as much
material as possible.
Scenario – 2:
Reporting of judicial trail and criminal incidence requires grate care. The news regarding any
criminal incidence and its judicial progress needs to be reported with great care so as to avoid
any legal consequences. Care must be taken for online comments of reviewers.
In case of reporting of case, relevant media law issues are the extent to which reporting will be
considered as fair and just and possibility of to be sued for contempt of court. The reporting of
any matter under justice requires due care. The reporting of criminal offence majorly involves
description regarding crime and its judicial progress, many times the information published by
media house may create hurdle in fair judicial process. This may create legal issue for media
house. This is because once the judicial process starts the matter becomes sub judicial in nature.
In case if publication of any article by publisher had a tendency, as a matter of practical reality,
to prejudice the fair trial of accused beyond the reasonable doubt than it may create issue
regarding contempt of court.
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In R v. Hinch, court held that the publication of any article must be of the nature that will not
affect the fair trail of accused person. The term sub judice can be defined as any word or action
which interfere with the proper administration of justice or constitute a disregard for the
authority of the court. Disclosure of identity of accused, witnesses and victims may interfere
judicial process adversely. The care should be taken regarding identity of accused, witnesses and
victims and important information regarding investigation progress.
In the given scenario, there is identification of victim, accused and report of some confidential
facts. It also includes details about evidence collected, admission made and statement of accused
person; this may create legal problems for the organization. The report under scenario has also
disclosed back ground of accused and assumption regarding his guilt. This may again go against
publication house. Any publication which detracting from the authority and has capacity to
influence judicial determination will be considered as contempt of court. This will be considered
as an offence for which publication house can be penalized.
The probable defense in this situation will be fair and accurate reporting and concept of open
court justice. The High Court has many times held that the court procedure must be under public
and professional scrutiny, and courts will not act contrary to the principle. The term fair and
accurate reporting refers to reporting of bare facts and maintaining secrecy of identity of certain
person. In Hogan v Hinch court held that the fair reporting cannot be viewed as hurdle in judicial
process. The court has observed that right to publish a report of proceedings is a corollary of the
right to attend and observe them. However, in many court proceedings court has found media
reports interfering with fair justice and publishers were penalized for its inexperienced media
reports. The concept of open justice cannot be considered as action creating hurdles in court
proceeding can be best defence for reporting of sub judice matter.
In order to publish media report on criminal incidences it is recommended that the care must be
taken about pendency of matter before court. More care must be taken for matter which is sub
judicial in nature. The report should only include bare facts regarding crime. The reporting of
crime relating to sexual offence and child must be made with almost due care; and media house
needs to ensure that no identification of victim must be given. The report must not include
statement about assumption regarding guilt or innocence. The identity of witnesses must be kept
secret. This will help publisher to publish material as much as possible.
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Scenario – 3:
The freedom of speech in Australia is not free as everyone think of it. The Constitution of
Australia grants freedom of political speech but there are many defamation laws and precedent
which puts limitation of freedom of speech. The review placed on website is also under legal
watch.
The care must be taken while writing negative review on internet. It should be noted that media
law creates an obligations of service provider to ensure the quality of review.
In case of online review, the possible medial law issues those might arises includes suit of
defamation for scathing review or suit for Injurious falsehood.
The term defamation means any speech whether orally or in written form that harms the
reputation of other party. Thus, any negative review regarding any entity that may affect its
reputation or business comes under risk of defamation.
In case if statement made by person affects the goods or business of person, the aggrieved person
may sue other for Injurious falsehood.
It is important to note that the defamation sustain in the court of law only if it satisfies following
criteria:
1. There must be statement capable of affecting reputation of other person.
2. The plaintiff must be identifiable.
3. The statement must be published.
In context of review Fisherman’s Lodge, it can be said that the review fulfils all conditions of
defamatory statement.
1. There exists negative review of website; which has capacity to affect reputation of
person. This review contains negative information about the Fisherman’s Lodge and this
may affect business reputation of entity. As it can affect business of Fisherman’s Lodge,
it may initiate legal action for Fisherman’s Lodge.
2. The plaintiff i.e. Fisherman’s Lodge is identifiable.
3. The statement was published on internet.
Thus, the statement comes under the preview of defamation law and capable of being sued.
In Radio 2UE Sydney Pty Ltd v Chesterton, court held that if the statement made was tends to
lower someone in the estimation of right-thinking people that it can be said that the statement is
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defamatory material. In Mickle v Farley court found that any comment on social media which
may affect reputation of plaintiff comes under preview of defamation.
The defamation law provides for some defenses which may be helpful to defend suit of
defamation. According to law; following cannot be sued under law of defamation:
1. Companies employing 10 or more people
2. Government authorities / councils
3. If defendant provides that the information was given with the intention to publish and not
to defame.
4. In case of Innocent dissemination by newspaper, Internet service providers and major SM
platforms.
Thus, as ISP, website owner can argue that there cannot be any responsibility for the post or
comment by its user as it is innocent publication.
However In its recent judgment, Supreme Court of Victoria and in case of ACCC v. Allergy
Pathway federal court held that in case of internet service provider, news paper and other
publisher, they can be sued either as primary publisher or subordinate publisher. They must
examine the content posted by the clients. In case if publisher failed to take reasonable care to
prevent publication or to exercise effective control over publication, it can be held responsible.
The court further held that the when entity acquires knowledge of defamatory comment or has
reason to believe than it is obliged to remove content from the website failing to which it can be
sued for defamation as subordinate publisher.
In the given scenario as website “True Blue Reviews” comes to know that both comment are
from same IP address and of which one is defamatory giving indirect advantage to other, it must
remove comment immediately.
It is recommended that website must arrange for review of comments made by public continually
to take shelter of innocent publication.
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Reference:
Dismissal and free speech: Full Federal Court considers implied right in employment context -
Knowledge - Clayton Utz. (2018). Claytonutz.com. Retrieved 18 April 2018, from
https://www.claytonutz.com/knowledge/2017/may/dismissal-and-free-speech-full-federal-court-
considers-implied-right-in-employment-context
Chief of the Defence Force v Gaynor [2017] FCAFC 41 (8 March 2017). (2018). Austlii.edu.au.
Retrieved 18 April 2018, from
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2017/41.html
Chief of the Defence Force v Gaynor [2017] FCAFC 41 (8 March 2017). (2018). Austlii.edu.au.
Retrieved 18 April 2018, from
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2017/41.html
ACCC v Allergy Pathway Pty Ltd and Anor (No 2) [2011] FCA 74 | Lexology. (2018).
Lexology.com. Retrieved 18 April 2018, from https://www.lexology.com/library/detail.aspx?
g=ba588d64-006e-42bf-8930-7d9a5f54be15
Unknown, (2018). Scholarlycommons.law.wlu.edu. Retrieved 18 April 2018, from
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1268&context=wlulr
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