Advice to Celebrity Whispers
This article is extremely problematic and raises a number of media law issues. I have discussed each one in turn before providing my final advice to ‘Celebrity Whispers’
The Macquarie Dictionary definition of defamation is a proclamation without suitable justification that causes damage to another’s reputation. Individuals are able to seek relief for defamation under the Defamation Act (Qld). The preferred definition of defamation comes from case law as affirmed in Radio 2UE Sydney Pty Ltd v Chesterton that ‘defamatory material tends to lower someone in the estimation of right-thinking people.
There are certainly grounds for defamation in this scenario as the article contains defamatory material capable of damaging the reputations of both Sam and David. By linking the article to the topical “#metoo” campaign it gives the impression that Sam and David are perpetrators of sexual offences.
Sam and David are both referred to by name so are obviously identifiable and the material has been published to a third party through their website and facebook. The issue of publication on the internet was dealt with in Gutnick’s case where it was held that defamatory material is published every time it is downloaded and read.
The following are defences to defamation that may apply in this scenario.
Proof that assertions made were true provides a full defence to defamation as in Rofe v Smith’s Newspapers. This defence comes under s25 of the Defamation Act and requires legitimate evidence that the claims made are truthful. For example, in the case of Atkinson Prakash Charan v Nationwide News the defence relied on more than 30 witnesses and hundreds of digital exhibits to prove the truth of their statements which resulted in the Court finding for the defence. There is not enough evidence here to prove the truth of the statements about Sam.
With respect to David, this may depend on what stage his matter is at in the courts. For example, if he has already been found guilty, and the next court date is a sentencing hearing, then there is no action for defamation as the imputations are true. However, if this is his first court appearance then he may have an action in defamation against Celebrity Whispers.
Published material where a defamatory imputation is incidental to the discussion of an important public issue may find relief under the Defamation Act. While the article does touch on an important public issue, being the “#metoo” campaign, it seems to use the campaign to fuel the imputation that Sam and David are guilty of a sexual offence. Consequently, it is unlikely that this defence would hold, as the text highlights, this defence rarely succeeds.
Contempt of Court
Sub judice proceedings are those that are pending and certain restrictions are in place during this time to avoid ‘trial by media’, according to the text. There is no absolute definition of when proceedings are considered ‘pending’,...