Protection of Personal Security, Public Order, Public Health - Assignment Example

Communication Law Name Institution Date Part 1 Q1 It is noteworthy that Larry has defamed Ella in his article titled “law of communication student thinks she knows travel because she has been to Bali”. This is because the general law of defamation identifies three major elements that prove that a person has defamed another. Patrick Thomas, defamation law in Australia, (2012) .For defamation action to see the light of the day and withstand any judicial threshold, the plaintiff has to prove the three elements: a) That the communication has been published to a third person. That is; the defamatory message is communicated by any means such as pictorial, written or orally. In this case, writers, publishers, and editors are liable for any defamatory information originating from their media house regardless of their intention. Larry is both the publisher and editor of the defamation message that appeared on the Trail-Blazer and as such he has no defense to argue on the case of defamation. In addition, the information is published on the magazine for online users to read. This makes the information defamatory by virtue of it being published on a third party. b) The communication identifies the plaintiff. That is to say that the plaintiff proves beyond reasonable doubt that the communication is all about him. However, this does not mean that the communication must name the plaintiff but other information in the communication is enough to convict the source of defamation communication. In the case of Larry and Ella, it is clear that Larry mentions Ella’s father, Hon John Egotistical. This 1Information alone clearly shows that Larry is referring to Ella whom he had an encounter with during the interview.2 c) The communication defames the plaintiff. This threshold requires that the communication harms the reputation of the plaintiff, ridicules them and causes other people to shun away the plaintiff. Larry lowers Ella’s reputation by pointing out that she has scored pass in all her papers. This affects Ella’s reputation in a damaging way and as such Larry has defamed Ella. It is worth noting that the publishing firm is liable for any defamation message that it allows to reach the public. In this regard, it is beyond reasonable doubt that Trail-Blazer allowed Larry’s publication to appear as its online publication. This makes Trail-Blazer liable for any judicial proceedings and may appear as a defendant before the court should the plaintiff mention the magazine as a defendant. Scott Beattie, Connect and Coverage: Australian Media and Communication Law, (2007) highlights the regulation issues that affect media and communication and their relation to the legal concepts of the Australian general and common law. The defense of jurisdiction as provided for in the Defamation act of 2005 is worth its use by Trail-Blazer in arguing their case. The defense of jurisdiction would be applicable if Trail-Blazer proves that the defamatory imputations in the publications portray true information about the plaintiff. Q2 The contempt of court by scandalizing entails the offense in which an individual, through a publication undermines the public confidence in the administration of justice. Moreover, the scandalizing contempt interferes with the administration of justice in that the publication tends to interfere with any continuing judicial process. A prosecution for scandalizing contempt normally deals with the recently completed judicial processes rather than pending litigation. In the event that the publication relates to a pending litigation, any charges brought before the court are likely to fit under the sub judice rule, including the offence of pre-judgment. Larry seems to commit the scandalizing contempt by referring to Hon John as corrupt, self-centered and biased. This is likely to interfere with the continuing judicial processes under the litigation authority of Hon John by undermining public confidence. The offense is of significance interest to the public especially when judges make rulings on controversial issues of the modern day. In the case of Gallagher v Durack in 1983 a trade unionist was convicted of scandalizing contempt. It is worth noting that the law on scandalizing contempt exists to protect the administration of justice but not to protect the feelings of the judges. A ruling by Lord Denning in a case filed in 1936 said the following about scandalizing. “It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as means to uphold our own integrity. That must rest on surer foundations” In defending his claims, Larry may base his arguments in the case of Ambard v AG of Trinidad. In this case, the judge observed that Ambard contains pointers to defense of fair comment, truth or jurisdiction. The judge, Lord Atkin, observed the liberty of the member of the public to criticize temperately and freely the process of the administration of justice. Furthermore, Larry can prove that he did not act with untruth, malice or with 3the objective of bringing into halt the process of the administration of justice. In addition, the case of R v Hoser, where Hoser claimed that a certain magistrate received bribes from a police officer, the judge, Eames J rule that Hoser was acting cynically and was misleading his readers about the magistrate. However, there plaintiff could not prove beyond reasonable doubt that the allegations were untrue. In conclusion, the judge exonerated Hoser of any wrong doing. These are the cases that Larry can quote for his defense. However, Larry can be convicted in the event that the plaintiff proves that the publication was actuated by malice and that the communication therein is untrue. Q3 The freedom of information act cap 47 f of 1982 provides the circumstances under which the department of communication in Australia is permitted to release personal information about an individual. Subsection 4 (a) states that a request is made to an agency or minister for access to a document of the agency or an official document of the minister that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person. In the case of Larry, the information is sought by Elli, who is by definition of this act, not a qualified person and as such the Minister should not give out information concerning Larry. Subsection one (1), provides that a document is exceptional from being released to the public if such disclosure under this Act would involve unreasonable disclosure of information personal information about any person (including a deceased person). Conversely, Elli seems to seek personal information about the communication between the department of tourist attracting and Larry and as such disclosure is prohibited under the law. Subsection five (5a) provides that the person requesting for any personal information about an agency or another person should be nominated by the applicant. Further, the information sought should not be detrimental to the agency. Contrastively, Ella’s motive to request for the information relating to Larry is to taint his name. Further, Ella is not nominated by Larry to request for his personal information. It is on these grounds that it is advisable that the Department of Tourist Attracting should not avail the information to Elli. These provisions preserve the privacy of individual information in the public domain.4 Part 2 Q4 There is always need to balance between the freedom of expression as provided for in the bill of rights and the right of privacy as provided for in the privacy act. The Australian law on freedom of expression puts limits of the extent to which a person exercising his freedom of expression can reach. In addition, the right of privacy of individuals protects their private information from infiltration by unauthorized individuals. To strike a balance between the aforementioned set of rights, it is advisable to observe the limits of each set of rights as well as the specific provisions of the law concerning each right. Mathew Groves, Modern Administrative Law in Australia: Concept and Contexts, (2014) Mathew Groves, Modern Administrative Law in Australia, (2014) above, highlights the modern culture regarding the freedom of information. Section 16 of the Human Rights Act 2004 provides that: a) Every person has a right to hold opinions without interference b) Every person has a right to freedom of expression which includes the freedom to seek, receive and impart and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another medium chosen by him or her. The existence of these laws clearly shows that there are rights to freedom of expression in Australia. However, these provisions have limits and are subject to lawful restrictions where it is reasonably necessary. In exercising the freedom of expression, it is worth noting that there is need; a) To respect the rights and reputation of other persons b) For the protection of personal security, public order, public health or public morality. Ella should have considered the limitations for the freedom of expression especially the respect of the rights of other persons including Larry. In respecting the rights and reputation of Larry, Ella is expected to refrain from making comments that may refer to Larry’s health conditions. Similarly, Larry should refrain from referring to the grades that Ella scored in her journalism papers. However factual the information that Larry communicates concerning Ella is, it is advisable for Elli to shy away from assassinating the character of Ella and her father. Moreover, the request that Ella makes to gain access to Larry’s personal information should not be guaranteed by the department of Tourist Attraction since such action would expose Larry’s personal information to the public. The common wealth privacy act 1988 is an Australian law that regulates the sharing of personal information concerning individuals. Moreover, the privacy act regulates the handling of private information as Mirko Bagaric (2005) points out. The regulation of accessing information is in the following ways: a) The act regulates the collection, use, disclosure and storage of personal tax information including the tax pin numbers and file numbers.5 b) The act allows handling of personal health information in the event that researchers are unable to seek individual’s consent. c) Provides protection of personal information held by government agencies such as the Department of Tourists Attraction. These provisions clearly show the existence of privacy laws in Australia. From the provisions, it is clear that the right of privacy is upheld by the laws of Australia. To balance between Larry’s right of privacy and Ella’s freedom of expression, it is advisable that the department of Tourist Attraction declines to give out the information that Ella is requesting. This is because by doing that; the department will be observing the provisions of the privacy act of 1988 that it is unlawful to share personal information without the consent of the owner. Similarly, Larry violates the privacy act by sharing Ella’s academic information without her consent. The information that Ella provides during the interview is for the purpose of the interview and it is not appropriate for Larry to share that same information to the public. In addition, it is noteworthy that Ella violates the provisions of the law on freedom of expression by implying that Larry’s health and mental ability is questionable. Part3 Q5 (c) Trail-Blazer Q6 (a) The act was a public act because it was made on a public forum Q7 (b) It is immaterial in determining breach of confidentiality whether Bettie intended to cause Larry detriment. Q8 (a) If a court ordered Ella to disclose her source for Larry’s Health information, she would not be compelled to reveal Bettie’s name if it was contrary to her industry code of ethics. References Dennis Campbell, Internet: Laws and Regulatory Regimes, 2nd edition, (2010) Juris Publishing, Inc. Mathew Groves, Modern Administrative Law in Australia: Concept and Contexts, (2014) Cambridge University Press. Mirko Bagaric & Carolyn Doyle, Privacy Law in Australia, (2005) Federation Press. Patrick Thomas, defamation law in Australia, (2012) LexisNexis Butterworths, Scott Beattie, Connect and Coverage: Australian Media and Communication Law. (2007) Oxford University Press. Read More