Introduction
Media people need to work closely with lawyers to assist to map probable legal risks associated with their employment. Defamation cases in Australia are said to be too expensive in terms of time, reputation and money. In undefended defamation suits, publishers may be asked to pay a hefty amount as compensation. A court may order an injunction to stop its publications. It is wise to remember that defamation trials put the standings of both defendants and plaintiffs on trial. The media should see that the personal information it has gathered is safeguarded from loss, misuse, or unofficial access.
This research essay studies in detail the Australian privacy laws and how media or professional communicators should be careful to avoid any legal risk for infringing other’s privacy in detail.
Details About The Nature, Type, And Perceived Level Of Risk
Public relations law in Australia can be regulated either by judges, which are popularly known as common laws, or statute law enacted by parliament at the federal level or at any territory or state level. Government administration is empowered to enact Broadcasting laws or council by-laws, which will rank at par with judge-pronounced or statute laws, and however, they can be easily overruled. In other words, media people are governed by laws at federal, local, and state levels. (Zawawi, 2009, p80).
The intricacy of the Australian legal system connotes media people need to work closely with lawyers to assist to map probable legal risks associated with their employment. The intricacy of Australian laws is one of the chief reasons for the enactment of “Uniform Defamation Acts (UDAs) in 2006. (Zawawi, 2009, p81).
Despite the introduction of the Uniform Defamation Act, it is still complex, and it is being interpreted by the Australian courts not uniformly. Defamation cases in Australia are said to be too expensive in terms of time, reputation and money. In undefended defamation suits, publishers may be asked to pay a hefty amount as compensation. A court may order an injunction to stop its publications. It is wise to remember that defamation trials put the standings of both defendants and plaintiffs on trial.
Australian privacy laws are complex in nature, and they can be categorized into three key provinces.
With transforming media practices and media technologies, privacy protection has been impacted under Australian general laws. The greatest development in this province is the promising tort of privacy, where an ordinary citizen can be able to sue for infringement of privacy in certain scenarios.
The National Privacy Principles and the Information Privacy Principles (Commonwealth Privacy Act 1988) and state-oriented privacy schemes offer legislative relief measures impacting privacy aimed at protection and digital communications networks. (Doyle & Mirko 2005)
Transnational agreements purported at harmonized standards between states, nations usually linked to international trade and cooperation. (Kenyon and Richardson, 2006, p4).
Public relations practitioners assume a significant role in encouraging the practice of legal compliance within the organization. This connotes assisting to establish and observe a system for administering complaints, segregating, interpreting, and investigating complaints, and employing and imparting training to employees to manage complaints. (Clark & Sweeney, 2006, p6).
Australia has multiple ranges of laws that offer privacy safeguarding including trespass, laws of a nuisance that safeguard confidentialities in contract and tort, the intellectual property regimes, contempt laws, and defamation laws.
Privacy Act 1988 stipulates how personal information is gathered, employed, unveiled, stored, and destructed and at the same time prescribing individual’s privileges to access and correct information. (Pearson 2007)
Under the Australian Unified Defamation Act, corporations other than not-for-profit which employs more than ten employees cannot initiate any defamation actions, and they must seek to redress their grievances either under the law of passing off or under trade practice law.
The Telecommunication (Interception) Act 1979 protects privacy interests by banning the interception of communications over telecommunications systems. (Doyle & Bagaric, p.99).
Ranking The Risks For Professional Communicators
Risks arising out of infringement of privacy for professional communicators can be ranked as follows:
An individual if he recklessly or intentionally intrudes upon a person’s seclusion or privacy.
That action is extremely disgusting to a logical person of ordinary sensibilities.
That action creates harm in the form of emotional, psychological, mental distress or harm. (Breit, 2007, 107).
If a publication contains malicious intention, it cannot use any defense for defamation. Even if a publication is made on an honest opinion if a plaintiff can succeed if he substantiates that the publication was with malice.
If material is published with bias.
If material is published with feelings of ill will.
Language and manner and extent of publication.
It can be adduced from the behavior of a litigant.
If it contains falsity of material.
Prior actions or conduct
Nominate The Two Greatest Legal Risks Associated For Media Industry In Australia
Defamation Law
This law aims to safeguard a person’s reputation which is a basic human right and it safeguards from unwarranted damage through publication. The following three tests will be applied by the courts to decide whether any publication is defamatory or not. If a publication has the following any one of the tendencies, then it will be deemed that defamation has been done. (Pearson 2007).
Rendering the plaintiff to contempt, hatred, or ridicule as decided in Parmiter v Coupland.
Where the plaintiff status has been lowered in the eyes of right-thinking members of the public as decided in Sim v Stretch.
Cause Plaintiff to be avoided or shunned, without moral blame as decided in Youssouoff v Metro Goldwyn Mayor Pictures. (Zawawi, 2009, p85).
Thus, under the Australian Uniform Defamation Act ( UDA), any pictures, words, graphics, cartoons, signs, effigies, even human gestures can be tantamount to an action in defamation either indirectly or directly through innuendo or inferences, emanating from some special information held by people perceiving the publication.
To get a favorable judgment, a plaintiff has to demonstrate the following in a defamation suit.
The material was published and seen, read, and heard by a third party.
They were recognized in the publication. In other words, if an average intelligent person can identify the plaintiff as the individual cited in the publication.
In Dow Jones & Co v Gutnick, it was held that in deciding the jurisdiction for defamation, the place where the material is uploaded may be taken into consideration in assessing the liability. (Zawawi, 2009, p86).
It is to be remembered that just because a communication is annoying, insulting, damaging, or false to somebody’s business, it does not connote that it is eventually defamatory.
Further, the new uniform defamation act specifies timing and mechanism requirements for making an offer to make amendments. An offer will not be tantamount to a fault or admission of liability but may be taken into consideration in lessening the damages if the plaintiff is successful in court. (Pearson 2007).
The Trade Practices Act and Standing
When making arrangements for campaigns and lobbying for a specific campaign, care should be taken not to indulge in deceptive or misleading. Professional communicators should be more cautious if they indulge in comparative advertising, puffery, and character merchandising.
Under Trade Practices Act 1974, section 52 obliges onerous duties on corporations and their employees who communicate the corporation’s message as this section forbids deceptive and misleading conduct. Deceiving or misleading connotes to “lead a person into error.” (Goldwasser 2006, p207).
In Nixon v Slatter and London, Slatter and London was a law firm that promoted a booklet that had a commercial or trading character. The booklet was both deceptive and misleading and in contravention of section 52 of TPA since it symbolized that Slater and Gordon were engaged in medical misconduct against two doctors whose digitally blurred image was printed on the first cover of the booklet. For this deceptive offense, the doctors were entitled to claim damages under section 82 of the TPA since it had caused damages to their standing. The court agreed on the contentions of the plaintiffs and ordered damages. (Zawawi, 2009, p90).
Thus, a professional communicator should be aware of all the implications arising from the defamation act and trade practices act else he may encounter legal risks.
What Are The Overall Strategies For Minimizing Legal Risks?
In certain cases, it is advisable to negotiate a settlement or trying to find some alternative ways of solving a conflict which might give a better result for media persons than exposing their conduct to pubic scrutiny. (Zawawi, 2009, p80).
Those who are in media, journalists, producers of current affairs and news should respect an individual’s privacy rights, and hence they should be well aware of codes of professional conduct and codes of ethics. For instance, the APC Privacy standard codifies that personal information can be collected only in the case of public interest. The media should see that the personal information it has gathered is safeguarded from loss, misuse, or unofficial access.
Majorities of Australian media like MEAA, FreeTV, and the Australian Press Council all respect for sensibilities and privacy of individuals. (Doyle & Mirko 2005)
Formulate a set of guidelines that would clearly describe the key legal principles and procedures to be followed when the communicators encounter legal risks.
A media company in a broadcast exposed a rape victim which is in contravention of particular statutory duties thereby causing extreme psychological and emotional harm as held in Jane Doe v. Australian Broadcasting Corporation. (Breit, 2007, p106). A communicator should be cautious in incidents like this to thwart any risks.
In John Fairfax Publications Pty Ltd v Gacic, it was held that business defamation can happen, even if a publication might not have lowered the estimation of a defamed person especially in the eyes of apt thinking individuals of the society at large. Thus, the publication has to just impact the business standing of the plaintiff. Hence, professional communicators should be very cautious when they publish any news articles about a business. (Zawawi, 2009, p86).
In Rindos v Hardwick, it was held that authors are liable for defamation, even if they publish the material on the internet. Likewise, if anyone republishes the defamed material, he will also be liable to be punished under Australian laws as held in Morosi v broadcasting Station. (Zawawi, 2009, p86).
Those who relaying broadcasts who have not previewed the program can be liable for the republication of a defamatory program since they should have procedures in place to check the content of the material as held in Thompson v ACTY. The proprietors of material who have published the defamed materials will also hold liable as held in Levien v Fox. (Zawawi, 2009, p86).
In Morosi v Broadcasting Station, a broadcaster was held to have indulged in defamation of a woman who repeated defamatory statements from earlier broadcast since the harm of the defamatory words cannot offset the impact of his praise. (Zawawi, 2009, p87).
In Brander v Ryan, the plaintiff was a racist, and it is arduous to establish that somebody is a racist since it is an expression of opinion. Hence, the imputation is vociferously defended as an honest opinion. The defendant relied on facts such as publicly known facts as Mr. Brander’s political motivations and position.
Some defenses are available against defamation, and they are as follows;
- If the material published is significantly true despite its public interest. An honest opinion is expressed by the defendant.
- If an honest opinion is expressed by a defendant’s agent or employee.
- If honest opinions are expressed by a commentator which would include an acknowledgment by testimonies. (Doyle & Mirko 2005).
Absolute privilege is available for tribunal hearings and council meetings. Professional communicators writing press releases on the proceedings of the tribunal would be covered under absolute privilege. If politicians, judges, and witnesses in a court make statements, which may be highly defamatory and such speeches or statements cannot be considered as defamatory. If politicians expose some scandals in the Parliament then such exposure will be eligible for immunity.
There are qualified privileges, which is a conditional defense that demands a defamatory publication to meet some stipulations to be defensible. Legal reports and parliament proceedings will fall under this category provided if they are accurate and fair. (Doyle & Mirko 2005)
Conclusion
Australian privacy laws are complex in nature. Public relations practitioners assume a significant role in encouraging the practice of legal compliance within the organization. The intricacy of the Australian legal system connotes media people need to work closely with lawyers to assist to map probable legal risks associated with their employment.
I feel that prevention is better than cure. Hence, I suggest that professional communicators in Australia should prevent such risk by having an inbuilt mechanism by disseminating knowledge on privacy infringement to avoid any future legal risk.
References
Breit, Rhonda (2007) Law and Ethics for Professional Communicators. Sydney, Australia: LexisNexis Butterworth.
Doyle Carolyn & Bagaric Mirko. (2005). Privacy Law in Australia. Sydney: Federation Press.
Pearson, M (2007) The Journalists Guide to Media Law: Dealing with Legal and Ethical Issues. Sydney: Allen & Unwin.
Zawawi Clara. (2009) Public Relations: Theory and Practice. Sydney: Allen & Unwin.