Monday, May 5, 2008
Sunday, May 4, 2008
Why Brian Gorrell Story Is Not Fit to Print
By Luis V. Teodoro
Although it’s supposed to be the talk of the town, and getting 36,000 visits a day not only from Netizens from the Philippines but also from other countries, the Brian Gorrell blog and the controversy surrounding it has only been reluctantly covered by the Philippine media.
For those whose interest has been focused on the rice crisis, hunger, unemployment, several economists’ doubts over the alleged 7.3 per cent growth of the economy last quarter, the National Broadband Network scandal, China-Philippine relations, the Spratlys, and other issues too many bloggers would sniff at as less than earth-shaking, the blog came online in furtherance of Gorrell’s campaign to get back US$70,000 that he claims was swindled off him by an ex boyfriend who’s allegedly a member of Manila high society, and whose associates cover its doings as lifestyle page “journalists”.
Among other claims, Gorrell has written that what he calls the “Gucci Gang” are free-loading, drug-snorting, pretentious brutes and bitches–parasites who live off the freebies and handouts of such PR events as the launch of this or that product line for socialites (and such other pretenders to the title as the pretty actress-whores kept by Manila’s aging but rich Lotharios) and the rest of that crowd.
It’s not an unfair picture of Manila high society, it being the domain as well of the low. But it’s the truth of Gorrell’s charges against his alleged ex-lover and his cohort that’s yet to be established. Primarily we only have his word for it via his blog, and while he has allowed one of those he has attacked in it some space, a blog is by its very nature self-serving, and the instrument of whoever created it.
That a blog is neither newspaper nor broadcast station seems obvious, but it’s a fact that’s nevertheless often missed, especially by those bloggers who’ve only recently discovered–and misconstrued—the miracles of free expression.
A blog provides those who would otherwise have no other way of venting their spleen the means to inflict their opinions no matter how putrid on whoever chances upon it or is directed to it in cyberspace. While there’s no shortage of bloggers who’re also journalists so steeped in the professional and ethical standards of journalism they don’t release anything into cyberspace that they haven’t verified, legions more hardly know the difference between gossip and fact, and don’t care to find out.
That’s not all. Any idiot with a desk or lap top and an Internet connection can start a blog. He or she decides when it goes up, what goes into it, who gets to comment in it, and how long it stays up. A blog is a distinctly individual thing, unlike the collective undertaking a newspaper or a news broadcast is, in both of which there are editors and a desk whose job is to look for errors in fact, correct bad grammar, and yes, check for libelous remarks.
It’s true that some newspapers and news broadcasts seem to be run by idiots too, and have been either printed or aired by people who’re just like most bloggers–i.e., they haven’t had a single day’s training in what they’re claiming to be doing, which is journalism. There’s this difference, however: responsible, professional journalists know the latter for what they are, and have about the same attitude towards them as doctors have toward quacks, which is to say that they don’t hold them up as exemplars of the profession, whereas most bloggers don’t make that distinction among themselves.
As for libel, (non-journalist) bloggers have been known to sneer at journalists’ concern for it, dismissing it as a concession to censorship. It can be. But while the libel law has been used to intimidate journalists, and Filipino journalists lost the most famous case in this country–the Aves de Rapina case–through a court biased for an official of the US colonial regime, it does have the eminently valid purpose of protecting media subjects from the abuse of the overzealous and/or malicious.
Not that journalists have not risked libel suits–if the stakes are high enough. Some indeed have braved prison and even death, both during the martial law period as well as the present regime, which at various times has threatened journalists with inciting to sedition cases and the withdrawal of network franchises, as well as listed them as “enemies of the state”.
Many have indeed died, 90 percent of the community journalists who have been killed in this country since 2001 for exposing corruption and criminality. Scared most journalists aren’t. But it’s a rare blogger who’d knowingly take the same risks while shooting his mouth off.
source: http://www.pinoypress.net/2008/04/09/why-brian-gorrell-story-is-not-fit-for-newspapers/
Although it’s supposed to be the talk of the town, and getting 36,000 visits a day not only from Netizens from the Philippines but also from other countries, the Brian Gorrell blog and the controversy surrounding it has only been reluctantly covered by the Philippine media.
For those whose interest has been focused on the rice crisis, hunger, unemployment, several economists’ doubts over the alleged 7.3 per cent growth of the economy last quarter, the National Broadband Network scandal, China-Philippine relations, the Spratlys, and other issues too many bloggers would sniff at as less than earth-shaking, the blog came online in furtherance of Gorrell’s campaign to get back US$70,000 that he claims was swindled off him by an ex boyfriend who’s allegedly a member of Manila high society, and whose associates cover its doings as lifestyle page “journalists”.
Among other claims, Gorrell has written that what he calls the “Gucci Gang” are free-loading, drug-snorting, pretentious brutes and bitches–parasites who live off the freebies and handouts of such PR events as the launch of this or that product line for socialites (and such other pretenders to the title as the pretty actress-whores kept by Manila’s aging but rich Lotharios) and the rest of that crowd.
It’s not an unfair picture of Manila high society, it being the domain as well of the low. But it’s the truth of Gorrell’s charges against his alleged ex-lover and his cohort that’s yet to be established. Primarily we only have his word for it via his blog, and while he has allowed one of those he has attacked in it some space, a blog is by its very nature self-serving, and the instrument of whoever created it.
That a blog is neither newspaper nor broadcast station seems obvious, but it’s a fact that’s nevertheless often missed, especially by those bloggers who’ve only recently discovered–and misconstrued—the miracles of free expression.
A blog provides those who would otherwise have no other way of venting their spleen the means to inflict their opinions no matter how putrid on whoever chances upon it or is directed to it in cyberspace. While there’s no shortage of bloggers who’re also journalists so steeped in the professional and ethical standards of journalism they don’t release anything into cyberspace that they haven’t verified, legions more hardly know the difference between gossip and fact, and don’t care to find out.
That’s not all. Any idiot with a desk or lap top and an Internet connection can start a blog. He or she decides when it goes up, what goes into it, who gets to comment in it, and how long it stays up. A blog is a distinctly individual thing, unlike the collective undertaking a newspaper or a news broadcast is, in both of which there are editors and a desk whose job is to look for errors in fact, correct bad grammar, and yes, check for libelous remarks.
It’s true that some newspapers and news broadcasts seem to be run by idiots too, and have been either printed or aired by people who’re just like most bloggers–i.e., they haven’t had a single day’s training in what they’re claiming to be doing, which is journalism. There’s this difference, however: responsible, professional journalists know the latter for what they are, and have about the same attitude towards them as doctors have toward quacks, which is to say that they don’t hold them up as exemplars of the profession, whereas most bloggers don’t make that distinction among themselves.
As for libel, (non-journalist) bloggers have been known to sneer at journalists’ concern for it, dismissing it as a concession to censorship. It can be. But while the libel law has been used to intimidate journalists, and Filipino journalists lost the most famous case in this country–the Aves de Rapina case–through a court biased for an official of the US colonial regime, it does have the eminently valid purpose of protecting media subjects from the abuse of the overzealous and/or malicious.
Not that journalists have not risked libel suits–if the stakes are high enough. Some indeed have braved prison and even death, both during the martial law period as well as the present regime, which at various times has threatened journalists with inciting to sedition cases and the withdrawal of network franchises, as well as listed them as “enemies of the state”.
Many have indeed died, 90 percent of the community journalists who have been killed in this country since 2001 for exposing corruption and criminality. Scared most journalists aren’t. But it’s a rare blogger who’d knowingly take the same risks while shooting his mouth off.
source: http://www.pinoypress.net/2008/04/09/why-brian-gorrell-story-is-not-fit-for-newspapers/
Wednesday, April 16, 2008
Blogging as Blackmail
By Dave Taylor
My colleague Neville Hobson has an interesting article today entitled Blogger waging war on Land Rover, about an English chap named Adrian Melrose who apparently bought a defective Land Rover Discovery and has been attacking the company ever since.
Indeed, on his own weblog, Adrian, who had been posting anonymously, has articles like Why am I terrorising Land Rover? and Land Rover isn't Listening. By his own admission, his so-called campaign against Land Rover (in which he states that he wants the company to "admit publically that my car was a first build F*** Up - I want them to replace it with a new one") is an attempt to terrorize the company.
For his own part, Neville says "The only thing I'm a bit hesitant about is that nowhere on the blog that I can see does the blogger identify who he (or she) is. That somewhat lessens the credibility of this campaign."
Neville, you're missing the forest for the tree here, I think...
When I read through Adrian's blog, I initially thought "cool idea, nice way to gain some visibility" but then I realized that it's just about impossible for Land Rover to now respond because it's become a parody of itself, somewhat of a "do you still beat your wife?" conundrum with no good way out.
For an individual consumer to seek relief for a faulty product is reasonable - and I do that myself with shoddy products - but where I believe Adrian crossed the line was with "I want Land Rover to admit publicly". He then follows up with what only can be called a public humiliation campaign against the corporation. Why, after all, did he think of contacting Harrison-Cowley, Land Rover's PR agency, rather than a consumer advocacy group or automotive publication?
It's blackmail, pure and simple. And in the public eye.
Land Rover, replace my car or I'll spend my time and effort writing terrible things about you and your cars.
Obviously, Land Rover bears some responsibility for addressing the issue of a faulty product, but there's a world of difference between "I love this car, but the electrical system has been wonky since day one. I continue to work with the dealer, company and local government representatives to remedy it" and "You stink. I'm going to write nasty things about you until you cry "uncle" and give me what I want."
I can only imagine Adrian's frustration with the situation (somehow there's nothing more frustrating than a defective automobile), but I suggest that rather than laud Adrian for an effective online campaign against the company, it's more appropriate to criticize his aggressive tactics. If I were in this situation, I'd be working behind the scenes, not in the limelight. The chance of a positive resolution is far, far higher.
As it is, I can just imagine the customer service team at Land Rover in a meeting with its PR agency, talking about Adrian's problem...
"Well, we know there were some problems with the first run."
"Yes, but we can't replace this chap's car now that it's a public problem"
"Oh? Why not?"
"Because if we say yes to him, we'll be attacked by every Tom, Dick and Harry who has even the slightest flaw in their car. Dirty ashtrays will produce flaming rhetoric and more bad PR than we can ever manage."
"Damn. So what do we do?"
"I dunno, mates, I just don't know..."
What do you think? Can Land Rover just resolve this situation by meeting Adrian's demands, or has he backed himself into a corner, leaving them no viable solution to this visible and embarrassing problem?
Source: http://www.intuitive.com/blog/blogging_as_blackmail_citizen_journalism_gone_terribly_wrong.html
My colleague Neville Hobson has an interesting article today entitled Blogger waging war on Land Rover, about an English chap named Adrian Melrose who apparently bought a defective Land Rover Discovery and has been attacking the company ever since.
Indeed, on his own weblog, Adrian, who had been posting anonymously, has articles like Why am I terrorising Land Rover? and Land Rover isn't Listening. By his own admission, his so-called campaign against Land Rover (in which he states that he wants the company to "admit publically that my car was a first build F*** Up - I want them to replace it with a new one") is an attempt to terrorize the company.
For his own part, Neville says "The only thing I'm a bit hesitant about is that nowhere on the blog that I can see does the blogger identify who he (or she) is. That somewhat lessens the credibility of this campaign."
Neville, you're missing the forest for the tree here, I think...
When I read through Adrian's blog, I initially thought "cool idea, nice way to gain some visibility" but then I realized that it's just about impossible for Land Rover to now respond because it's become a parody of itself, somewhat of a "do you still beat your wife?" conundrum with no good way out.
For an individual consumer to seek relief for a faulty product is reasonable - and I do that myself with shoddy products - but where I believe Adrian crossed the line was with "I want Land Rover to admit publicly". He then follows up with what only can be called a public humiliation campaign against the corporation. Why, after all, did he think of contacting Harrison-Cowley, Land Rover's PR agency, rather than a consumer advocacy group or automotive publication?
It's blackmail, pure and simple. And in the public eye.
Land Rover, replace my car or I'll spend my time and effort writing terrible things about you and your cars.
Obviously, Land Rover bears some responsibility for addressing the issue of a faulty product, but there's a world of difference between "I love this car, but the electrical system has been wonky since day one. I continue to work with the dealer, company and local government representatives to remedy it" and "You stink. I'm going to write nasty things about you until you cry "uncle" and give me what I want."
I can only imagine Adrian's frustration with the situation (somehow there's nothing more frustrating than a defective automobile), but I suggest that rather than laud Adrian for an effective online campaign against the company, it's more appropriate to criticize his aggressive tactics. If I were in this situation, I'd be working behind the scenes, not in the limelight. The chance of a positive resolution is far, far higher.
As it is, I can just imagine the customer service team at Land Rover in a meeting with its PR agency, talking about Adrian's problem...
"Well, we know there were some problems with the first run."
"Yes, but we can't replace this chap's car now that it's a public problem"
"Oh? Why not?"
"Because if we say yes to him, we'll be attacked by every Tom, Dick and Harry who has even the slightest flaw in their car. Dirty ashtrays will produce flaming rhetoric and more bad PR than we can ever manage."
"Damn. So what do we do?"
"I dunno, mates, I just don't know..."
What do you think? Can Land Rover just resolve this situation by meeting Adrian's demands, or has he backed himself into a corner, leaving them no viable solution to this visible and embarrassing problem?
Source: http://www.intuitive.com/blog/blogging_as_blackmail_citizen_journalism_gone_terribly_wrong.html
Monday, April 14, 2008
Australian Defamation Laws & the Internet
Defamation laws have developed over several centuries to provide recourse for people whose reputation is or is likely to be harmed by publication of information about them.
In theory, the objective of defamation laws is to balance protection of individual reputation with freedom of expression. In practice, defamation laws are frequently used as a means of chilling speech. A threat of (costly) defamation proceedings and damages, whether or not a plaintiff's claim is likely to be upheld by a court, is often used to silence criticism not only by a particular person or group but also as a threat to others.
Like almost all other laws to date, defamation is defined within jurisdictions that are based on geographical areas. The Internet is inherently trans-border in nature, with both push technologies like email and pull technologies like the web unconstrained and indeed unconstrainable by state or national borders. The cyberspace era presents challenges to longstanding laws far greater than did the broadcast media of radio and TV.
This document provides an introduction to defamation laws, focusing primarily on Australian civil defamation laws, and the applicability of those laws to material published via the Internet. For legal advice on particular defamation claims, EFA strongly suggests you consult a solicitor. Introductions to qualified legal advice may be provided by the Law Society in each State or Territory of Australia.
2006 Amendments to Australian Defamation Laws
In May 2005 it was announced that State and Territory Governments had finally reached agreement on enacting uniform defamation laws, and intended to do so by 1 January 2006, and that Federal Attorney General Philip Ruddock had told the States he would no longer insist on changes to their model code (Defamation goes national, Michael Pelly, Sydney Morning Herald, 20 May 2005).
On 25 October 2005, the Queensland Attorney General Linda Lavarch announced that a Bill (Defamation Bill 2005) to amend Queensland's defamation laws, in accord with proposed uniform national laws, had been introduced into Parliament and was expected to become effective from 1 January 2006. In a media release titled Queensland Moves To Adopt National Uniform Defamation Laws the Queensland Attorney General stated that key features of the legislation include:
On 15 December 2005, the Federal Attorney General announced that all six States had enacted substantially uniform defamation laws.
EFA has not yet had sufficient time/resources available to undertake a detailed analysis of the new laws. However, our brief review of the Queensland Bill indicates the new laws are a major improvement on the previous situation.
--------------------------------------------------------------------------------
Australian Defamation Laws pre 2006
Note: This section was originally written in 2002 and provides information about defamation laws prior to enactment of amended laws in late 2005 or 2006. EFA has not yet had sufficient time/resources to review the new laws and update this section. While some of the information below will continue to be relevant to the amended laws, some will not. For example, two significant differences are the establishment of a defence of "truth" to replace the previous defences of "truth and public benefit" or "truth and public interest" and preventing most business corporations from being able to sue for defamation.
Introduction
In Australia, there is no legislation dealing specifically with defamation on the Internet. Defamation laws are applicable to publications generally, rather than specifically to particular media. Hence, the laws applicable to offline material are also applicable, in principle, to online material. However, the courts are being called on to work out how existing principles are to be applied to new contexts.
The first reported trial concerning the application of defamation laws to online publications occurred in relation to posts on an Internet bulletin board in Western Australia in 1993 (Rindos v Hardwick).
Lack of uniformity in Australian jurisdictions' defamation laws
Australian defamation laws are primarily State and Territory laws (not Federal) and the law, including available defences, was different in each jurisdiction until 2006. (Some Federal statutes include provisions relative to defamation of, or by, a narrow range of persons and in particular circumstances, but these are beyond the scope of this document.)
Attempts to establish national uniform defamation laws over the past 150 years had failed. In 1979, the Australian Law Reform Commission (ALRC) stated, in its report Unfair Publication: Defamation and Privacy:
"[Defamation laws] are partly contained in statutes, and partly in judge-made rules of common law. The laws are complex and conflict from one part of the country to another. It is not reasonable to expect editors, producers and journalists to know and apply eight separate defamation laws in publishing newspapers and magazines circulating throughout Australia and in selecting material for transmission on national broadcasting and television programs. In most jurisdictions the content of the law has been substantially unrevised this century. The law takes little account of changed social conditions, technological advances and the growth of national consciousness and national communication." The ALRC recommended in 1979 that uniform defamation laws applicable throughout Australia be enacted. Since 1979, some jurisdictions had amended their defamation laws, but uniformity had been no closer and generally speaking the laws remained obscure, complex and confusing.
On 17 April 1998 the Federal Attorney-General Daryl Williams issued a media release stating inter alia:
"It is disappointing that the States and Territories have again failed to agree to the introduction of uniform defamation laws in Australia. ... The situation which exists now is that there are different defamation laws for each State and Territory. This archaic system is bad for the general community and for business in Australia. At the Standing Committee of Attorneys-General in Perth today, there has again been a failure to reach an agreed path to progress towards uniform defamation laws. While there is general support for uniformity, there is an unfortunate lack of willingness to act. ...Today's disappointing lack of will on the part of the States and Territories leaves the Commonwealth having to consider ways to minimise differences in laws around Australia."
Until 2005, there had been little, if any, evidence publicly available to indicate that either the Commonwealth or the States/Territories had further considered the issue of uniformity since 1998.
However, as outlined under 2006 Amendments earlier herein, in 2005 the jurisdictions finally reached agreement.
Civil and Criminal Defamation
Australian laws include offence provisions for civil defamation and criminal defamation.
Civil liability arises from publications likely to harm a person's reputation and penalties are monetary.
Criminal liability arises from publications that affect the community, such as those that have a tendency to endanger the public peace, and penalties in most jurisdictions include imprisonment. Generally, proceedings for criminal defamation are commenced by law enforcement authorities. (In most jurisdictions, a private prosecution concerning criminal defamation requires the prior consent of, for example, the Director of Public Prosecutions, the Attorney-General, or a court order.)
Criminal prosecution for defamation is rare in Australia. However, within the last decade (since 1990) people have been imprisoned in Australia for criminal defamation (the most recently notorious being former WA Liberal Premier, Ray O'Connor).
There are signficant differences between civil and criminal defamation law relative to liability, defences, etc. The remainder of this document addresses civil, not criminal, defamation laws.
What is a defamatory publication?
The definition of "defamatory matter" varies among Australian jurisdictions. In some jurisdictions common law definitions apply, while in others (e.g. Queensland and Tasmania) the definition has been codified.
Very generally speaking, material that could be found to be defamatory includes that which has the tendency to lower the person in the estimation of others, or that would tend to result in the person being shunned or avoided or that is likely to expose the person to hatred, contempt or ridicule (trivial ridicule or good natured humour is less likely to be problematic than derisory ridicule).
In its 1996 report on defamation law, the A.C.T. Community Law Reform Committee outlined defamation as follows:
"Defamation is the publication of words or images to a person that damages the reputation of another ['slander' if spoken words, 'libel' if written words or images]. A defamatory statement is one that is likely to cause ordinary, reasonable people to think less of the person about whom the words or images are published. An inference that casts a defamatory imputation is enough to bring an action.
The following are examples of defamation:
An imputation which may tend to cause a person to be hated or despised, or cause them to be treated with contempt by their peers;
The publication of material that renders a person to ridicule, even if involving humour. The publication of a photograph that contained an optical illusion giving the appearance that someone was guilty of indecent exposure is defamatory;
Certain caricatures have been held to be defamatory. Determining what is defamatory is notoriously difficult in these matters. The distinction between artistic freedom and defamation will no doubt remain the subject of litigation."
For a defamation action to be successful, it must be established that the communication:
In theory, the objective of defamation laws is to balance protection of individual reputation with freedom of expression. In practice, defamation laws are frequently used as a means of chilling speech. A threat of (costly) defamation proceedings and damages, whether or not a plaintiff's claim is likely to be upheld by a court, is often used to silence criticism not only by a particular person or group but also as a threat to others.
Like almost all other laws to date, defamation is defined within jurisdictions that are based on geographical areas. The Internet is inherently trans-border in nature, with both push technologies like email and pull technologies like the web unconstrained and indeed unconstrainable by state or national borders. The cyberspace era presents challenges to longstanding laws far greater than did the broadcast media of radio and TV.
This document provides an introduction to defamation laws, focusing primarily on Australian civil defamation laws, and the applicability of those laws to material published via the Internet. For legal advice on particular defamation claims, EFA strongly suggests you consult a solicitor. Introductions to qualified legal advice may be provided by the Law Society in each State or Territory of Australia.
2006 Amendments to Australian Defamation Laws
In May 2005 it was announced that State and Territory Governments had finally reached agreement on enacting uniform defamation laws, and intended to do so by 1 January 2006, and that Federal Attorney General Philip Ruddock had told the States he would no longer insist on changes to their model code (Defamation goes national, Michael Pelly, Sydney Morning Herald, 20 May 2005).
On 25 October 2005, the Queensland Attorney General Linda Lavarch announced that a Bill (Defamation Bill 2005) to amend Queensland's defamation laws, in accord with proposed uniform national laws, had been introduced into Parliament and was expected to become effective from 1 January 2006. In a media release titled Queensland Moves To Adopt National Uniform Defamation Laws the Queensland Attorney General stated that key features of the legislation include:
- "preventing corporations (other than non-for-profit organisations or small businesses) from suing for defamation, addressing current community concerns that large companies could stifle legitimate public debate by beginning defamation action;
- establishing a defence of "truth" to replace the previous defence of "truth and public benefit";
- reducing the time limit for bringing a defamation action from six years to one year (or three years if the court is satisfied an action could not have been brought within one year);
- abolishing the awarding of exemplary and punitive damages in civil defamation proceedings; and
- limiting juries to determining whether a person has been defamed, leaving the awarding of damages to judges."
On 15 December 2005, the Federal Attorney General announced that all six States had enacted substantially uniform defamation laws.
EFA has not yet had sufficient time/resources available to undertake a detailed analysis of the new laws. However, our brief review of the Queensland Bill indicates the new laws are a major improvement on the previous situation.
--------------------------------------------------------------------------------
Australian Defamation Laws pre 2006
Note: This section was originally written in 2002 and provides information about defamation laws prior to enactment of amended laws in late 2005 or 2006. EFA has not yet had sufficient time/resources to review the new laws and update this section. While some of the information below will continue to be relevant to the amended laws, some will not. For example, two significant differences are the establishment of a defence of "truth" to replace the previous defences of "truth and public benefit" or "truth and public interest" and preventing most business corporations from being able to sue for defamation.
Introduction
In Australia, there is no legislation dealing specifically with defamation on the Internet. Defamation laws are applicable to publications generally, rather than specifically to particular media. Hence, the laws applicable to offline material are also applicable, in principle, to online material. However, the courts are being called on to work out how existing principles are to be applied to new contexts.
The first reported trial concerning the application of defamation laws to online publications occurred in relation to posts on an Internet bulletin board in Western Australia in 1993 (Rindos v Hardwick).
Lack of uniformity in Australian jurisdictions' defamation laws
Australian defamation laws are primarily State and Territory laws (not Federal) and the law, including available defences, was different in each jurisdiction until 2006. (Some Federal statutes include provisions relative to defamation of, or by, a narrow range of persons and in particular circumstances, but these are beyond the scope of this document.)
Attempts to establish national uniform defamation laws over the past 150 years had failed. In 1979, the Australian Law Reform Commission (ALRC) stated, in its report Unfair Publication: Defamation and Privacy:
"[Defamation laws] are partly contained in statutes, and partly in judge-made rules of common law. The laws are complex and conflict from one part of the country to another. It is not reasonable to expect editors, producers and journalists to know and apply eight separate defamation laws in publishing newspapers and magazines circulating throughout Australia and in selecting material for transmission on national broadcasting and television programs. In most jurisdictions the content of the law has been substantially unrevised this century. The law takes little account of changed social conditions, technological advances and the growth of national consciousness and national communication." The ALRC recommended in 1979 that uniform defamation laws applicable throughout Australia be enacted. Since 1979, some jurisdictions had amended their defamation laws, but uniformity had been no closer and generally speaking the laws remained obscure, complex and confusing.
On 17 April 1998 the Federal Attorney-General Daryl Williams issued a media release stating inter alia:
"It is disappointing that the States and Territories have again failed to agree to the introduction of uniform defamation laws in Australia. ... The situation which exists now is that there are different defamation laws for each State and Territory. This archaic system is bad for the general community and for business in Australia. At the Standing Committee of Attorneys-General in Perth today, there has again been a failure to reach an agreed path to progress towards uniform defamation laws. While there is general support for uniformity, there is an unfortunate lack of willingness to act. ...Today's disappointing lack of will on the part of the States and Territories leaves the Commonwealth having to consider ways to minimise differences in laws around Australia."
Until 2005, there had been little, if any, evidence publicly available to indicate that either the Commonwealth or the States/Territories had further considered the issue of uniformity since 1998.
However, as outlined under 2006 Amendments earlier herein, in 2005 the jurisdictions finally reached agreement.
Civil and Criminal Defamation
Australian laws include offence provisions for civil defamation and criminal defamation.
Civil liability arises from publications likely to harm a person's reputation and penalties are monetary.
Criminal liability arises from publications that affect the community, such as those that have a tendency to endanger the public peace, and penalties in most jurisdictions include imprisonment. Generally, proceedings for criminal defamation are commenced by law enforcement authorities. (In most jurisdictions, a private prosecution concerning criminal defamation requires the prior consent of, for example, the Director of Public Prosecutions, the Attorney-General, or a court order.)
Criminal prosecution for defamation is rare in Australia. However, within the last decade (since 1990) people have been imprisoned in Australia for criminal defamation (the most recently notorious being former WA Liberal Premier, Ray O'Connor).
There are signficant differences between civil and criminal defamation law relative to liability, defences, etc. The remainder of this document addresses civil, not criminal, defamation laws.
What is a defamatory publication?
The definition of "defamatory matter" varies among Australian jurisdictions. In some jurisdictions common law definitions apply, while in others (e.g. Queensland and Tasmania) the definition has been codified.
Very generally speaking, material that could be found to be defamatory includes that which has the tendency to lower the person in the estimation of others, or that would tend to result in the person being shunned or avoided or that is likely to expose the person to hatred, contempt or ridicule (trivial ridicule or good natured humour is less likely to be problematic than derisory ridicule).
In its 1996 report on defamation law, the A.C.T. Community Law Reform Committee outlined defamation as follows:
"Defamation is the publication of words or images to a person that damages the reputation of another ['slander' if spoken words, 'libel' if written words or images]. A defamatory statement is one that is likely to cause ordinary, reasonable people to think less of the person about whom the words or images are published. An inference that casts a defamatory imputation is enough to bring an action.
The following are examples of defamation:
An imputation which may tend to cause a person to be hated or despised, or cause them to be treated with contempt by their peers;
The publication of material that renders a person to ridicule, even if involving humour. The publication of a photograph that contained an optical illusion giving the appearance that someone was guilty of indecent exposure is defamatory;
Certain caricatures have been held to be defamatory. Determining what is defamatory is notoriously difficult in these matters. The distinction between artistic freedom and defamation will no doubt remain the subject of litigation."
For a defamation action to be successful, it must be established that the communication:
- was published to a third person, i.e. to at least one person other than the plaintiff (person/entity defamed).
- identifies the plaintiff, for example, by name or by a reference to a small group of people, etc.
- contains a defamatory statement or imputation (whether intentionally published or not).
Who can sue?
In theory, any individual or entity who considers damage to their reputation has or is likely to occur, as a result of material published, may sue the publisher/s of the material.
In practice, the laws are inaccessible to ordinary individuals who are defamed due to the exhorbitant legal costs involved in bringing a defamation action.
Australia's defamation laws are often used by politicians and corporations who consider the media, individuals or community groups have defamed them in publishing information critical of their activities.
Who is able to be sued and liable?
Defamation action may be brought, not only against the original publisher (writer/speaker), but also against anyone who takes part in the publication or re-publication of the material. Furthermore, re-publication by someone other than the original writer may result in an action against the original writer as well as the re-publisher.
In relation to defamatory material published on the Internet:
- Internet users may be sued in relation to material they write/publish themselves, or if they re-publish/distribute material written by someone else. They may also be sued if another person publishes something they wrote, for example, an email published without the writer's permission on a web site.
- Internet Service Providers (ISP) and Internet Content Hosts (ICH) may be sued in relation to information published by someone else, for example, published by a person who used an ISP's or ICH's system, web server, chat boards, etc, to make information available via the Internet.
However, the fact that a person can be sued does not necessarily mean they would be found liable by a court. There are numerous aspects relevant to liability. Addressing all of these is beyond the scope of this document. As one example, the liability of the original publisher for re-publication by someone else depends on matters such as whether the original publisher authorised or intended the re-publication, whether the re-publisher was under a duty to repeat the statement, and/or whether the re-publication is the "natural or probable" result of the original statement.
There are many circumstances in which persons who can be sued receive credible threats of defamation proceedings against them, but some are pure bluff, and some fall at the first hurdle. For example, some threats are dropped when it becomes apparent that the respondant is aware that they have a legitimate defence, or there is risk of a counter-claim such as 'abuse of process', etc. In any case, ultimately only the court can determine whether any one or other respondent is liable.
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Which jurisdiction's law applies?
Defamation action under Australian law may be commenced in any State or Territory in which the allegedly defamatory material was published.
However, there are other factors relevant to where a final decision on a particular case will be made.
A uniform scheme of cross-vesting jurisdiction was enacted by the Commonwealth and the States/Territories in 1987. Under this scheme, an action commenced in the Supreme Court of one State/Territory can be transferred by the court to another jurisdiction's court when such a transfer would be "in the interests of justice".
Furthermore, a publisher may have grounds to make an application to the court to stay the proceedings on the basis of "forum non-conveniens". This involves showing that the jurisdiction in which the proceedings have been been instituted is "clearly inappropriate". To show this in an Australian court, the defendant must "satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious" to the defendant (Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197).
In relation to material published on the Internet, there have been few Australian court decisions to date addressing where or when material made available via the Internet is "published". Hence, a plaintiff may choose to commence a defamation action in the State or Territory with laws most favourable to the plaintiff's case, that is, irrespective of the location of the server/system used to make the material accessible or the location of the defendant/s or plaintiff. (However, the outcome of the action could be decided in a different jurisdiction as outlined above).
Moreover, as defamation laws in other countries (as well as in Australia) enable a defamation action to be brought under their laws if material was published in their jurisdiction, persons who publish/distribute material on the Internet may find themselves facing defamation action under the laws of a country other than their country of residence.
Emirati jailed again in Internet defamation case
MAY THIS SERVE AS A WARNING TO ALL OF YOU
DUBAI -- An Emirati man charged with defamation on an Internet site was sent back to jail on Thursday, one week after a court in the United Arab Emirates released him on bail, sources close to the case said.
The sources told Agence France-Presse that Khaled al-Asli, who denies being the author of an online article allegedly slandering a local official in the emirate of Ras al-Khaimah and posted under a pen name, was put again behind bars after a court hearing.
He had been freed on bail on August 23.
The owner of the popular website, Mohammad Rashed al-Shehhi, is appealing a one-year jail sentence passed earlier in August also on defamation charges. He was ordered to pay the equivalent of 19,000 dollars in fines and compensation to another local official who sued his website.
The next hearing at the appeal court in Ras al-Khaimah, one of seven emirates making up the UAE, is set for September 9.
Shehhi's defence lawyer, Abdullah Omran, told AFP on Thursday that in addition to the trial which ended with the one-year jail sentence, Shehhi is also on trial in connection with the defamation suit filed against Asli.
He said the court of first instance agreed during Thursday's hearing to his request to merge the suits related to the latter case and scheduled the next hearing for September 2.
Shehhi will also be questioned by the prosecution the next day in relation to a third complaint against his website, majan.net, which has been closed by court order.
The detention of the two men has raised concern among rights activists. One Arab human rights group said last week it dealt "a harsh blow to freedom of expression" in a country which took the lead in spreading Internet usage.
Scores of regional and international news organizations operate out of Dubai, another UAE member which hosts Internet and media free zones, but mainstream local media in the oil-rich Gulf country are mostly government-guided.
Source: http://newsinfo.inquirer.net/breakingnews/infotech/view_article.php?article_id=85662
DUBAI -- An Emirati man charged with defamation on an Internet site was sent back to jail on Thursday, one week after a court in the United Arab Emirates released him on bail, sources close to the case said.
The sources told Agence France-Presse that Khaled al-Asli, who denies being the author of an online article allegedly slandering a local official in the emirate of Ras al-Khaimah and posted under a pen name, was put again behind bars after a court hearing.
He had been freed on bail on August 23.
The owner of the popular website, Mohammad Rashed al-Shehhi, is appealing a one-year jail sentence passed earlier in August also on defamation charges. He was ordered to pay the equivalent of 19,000 dollars in fines and compensation to another local official who sued his website.
The next hearing at the appeal court in Ras al-Khaimah, one of seven emirates making up the UAE, is set for September 9.
Shehhi's defence lawyer, Abdullah Omran, told AFP on Thursday that in addition to the trial which ended with the one-year jail sentence, Shehhi is also on trial in connection with the defamation suit filed against Asli.
He said the court of first instance agreed during Thursday's hearing to his request to merge the suits related to the latter case and scheduled the next hearing for September 2.
Shehhi will also be questioned by the prosecution the next day in relation to a third complaint against his website, majan.net, which has been closed by court order.
The detention of the two men has raised concern among rights activists. One Arab human rights group said last week it dealt "a harsh blow to freedom of expression" in a country which took the lead in spreading Internet usage.
Scores of regional and international news organizations operate out of Dubai, another UAE member which hosts Internet and media free zones, but mainstream local media in the oil-rich Gulf country are mostly government-guided.
Source: http://newsinfo.inquirer.net/breakingnews/infotech/view_article.php?article_id=85662
Amalia's son sued
MAY THIS SERVE AS A WARNING TO ALL OF YOU!
A member of the Aznar family has sued the son of actress Amalia Fuentes for libel for posting “defamatory messages” against her in the Internet.
Angelica Aznar-Sierra filed the complaint for libel and seven counts of unjust vexation against Gerald Stevens before the Cebu City Prosecutor's Office on Feb. 13.She also filed a petition for injunction to stop Stevens from sending “malicious” and “vulgar” messages to her through email, the Internet, a blog or a Friendster account.
She asked the court to issue a temporary restraining order against Stevens, a 24-year-old son of the actress, who described Sierra in a blog as the “third party” who led to the breakup of his parents’ marriage.
Sierra, who said the allegations were “false,” demanded P1.5 million in damages and P500,000 in attorney's fees.Sierra said that since she “comes from a known family of educators in Cebu” and is “a loving and dutiful mother to her children,” the conduct of Stevens “specifically his obscene, derogatory, and offensive e-mail messages and violent actions” directed at her and her children, have “maligned her good name and reputation as well as caused her much pain, annoyance and anguish,” according to the complaint dated Feb. 8.
Both complaints were prepared by her Manila-based lawyers Denise Jordan Arenillo and Philip Sigfrid Fortun. Fortun is legal counsel of former president Joseph Estrada in his impeachment trial.tried to contract Amalia Fuentes through her mobile phone yesterday but it was out of the coverage area.
Gerald, 24, accompanied his mother to Cebu in October 2007 for the pre-trial conference of the petition for annulment filed by his father, Joey Stevens, 72, before the Regional Trial Court in Mandaue City. He didn’t speak, however, when news reporters interviewed his mother after she talked in detail about her marriage in a closed-door conference.
Joey filed for annulment against the 62-year-old movie icon in July 2007, 28 years of after they wed on August 10, 1979. He cited the ground of pscychological incapacity under the Family Code.talked with Joseph Stevens, son of Joey, but he declined to comment on the case until he consults his lawyer. In the complaint, Sierra said Gerald had accused her of having an affair with his father that led to the breakdown of the marriage of Amalia and Joey.
She said the allegation “was a clear concoction and is untrue.”She asked the court to stop Gerald from harassing and intimidating her and members of her family.
Sierra said that from August to November 2007, she received verbal and written threats of physical violence from Gerald. She said he also called her office at the Southwestern University three times looking for her.
During the same period, she said Gerald also called the office of her security agency in Cebu City, speaking in “a gruff and threatening tone” which frightened her staff.Gerald also went to her condominium unit in Pasig City where her children were staying last Nov. 12, 2007.
Sierra alleged that Gerald, who was accompanied by Amalia and two unidentified companions, threw things in the lobby of the condominium building and shouted invectives at the reception staff.“Defendant announced to all then present that (Sierra) and Mr. Stevens were having an extra-marital affair, which was a clear concoction and untrue,” she said.
In December 2007, said Sierra, she started receiving messages in her Friendster account from Gerald using the names “Geric Stevens” and “Geric.”In the Internet messages, Gerald called her several “offensive” names and accused her of having an affair with his father, said the complaint.
She said the false accusations have caused her much anxiety.
Sierra attached in her complaint a printout of several email messages sent to her Friendster account dated Dec. 13 and Dec. 14.
An email message sent on Dec. 14 challenged her to view his blog in his Friendster account entitled “My first blog ever: One Reason to Stay in School.”A blog, short for Web log, is a personal website or journal. In his blog, Gerald attached a letter purportedly written by Sierra to his father and said the only reason he was putting up the blog was because of the involvement of Sierra as the “third party” who caused his parents to split up.
According to Sierra, Gerald's blog was “designed solely to humiliate and ridicule” her as well as to malign her name and reputation.On Jan. 8, the Sierra received another message in her Friendster account where Gerald allegedly cursed her. Aside from persistent “defamatory electronic messages”, said Sierra, Gerald went again to the condominium on Jan. 11 in Pasig and accused her of having an affair with his father.Sierra, through her lawyer, sent a letter to Gerald on Jan. 16 demanding that he stop harassing her.She said her rights as a person and a “woman and a mother of good repute” have been violated.
Source: http://globalnation.inquirer.net/cebudailynews/news/view/20080215-119056/Amalias-son-sued
A member of the Aznar family has sued the son of actress Amalia Fuentes for libel for posting “defamatory messages” against her in the Internet.
Angelica Aznar-Sierra filed the complaint for libel and seven counts of unjust vexation against Gerald Stevens before the Cebu City Prosecutor's Office on Feb. 13.She also filed a petition for injunction to stop Stevens from sending “malicious” and “vulgar” messages to her through email, the Internet, a blog or a Friendster account.
She asked the court to issue a temporary restraining order against Stevens, a 24-year-old son of the actress, who described Sierra in a blog as the “third party” who led to the breakup of his parents’ marriage.
Sierra, who said the allegations were “false,” demanded P1.5 million in damages and P500,000 in attorney's fees.Sierra said that since she “comes from a known family of educators in Cebu” and is “a loving and dutiful mother to her children,” the conduct of Stevens “specifically his obscene, derogatory, and offensive e-mail messages and violent actions” directed at her and her children, have “maligned her good name and reputation as well as caused her much pain, annoyance and anguish,” according to the complaint dated Feb. 8.
Both complaints were prepared by her Manila-based lawyers Denise Jordan Arenillo and Philip Sigfrid Fortun. Fortun is legal counsel of former president Joseph Estrada in his impeachment trial.tried to contract Amalia Fuentes through her mobile phone yesterday but it was out of the coverage area.
Gerald, 24, accompanied his mother to Cebu in October 2007 for the pre-trial conference of the petition for annulment filed by his father, Joey Stevens, 72, before the Regional Trial Court in Mandaue City. He didn’t speak, however, when news reporters interviewed his mother after she talked in detail about her marriage in a closed-door conference.
Joey filed for annulment against the 62-year-old movie icon in July 2007, 28 years of after they wed on August 10, 1979. He cited the ground of pscychological incapacity under the Family Code.talked with Joseph Stevens, son of Joey, but he declined to comment on the case until he consults his lawyer. In the complaint, Sierra said Gerald had accused her of having an affair with his father that led to the breakdown of the marriage of Amalia and Joey.
She said the allegation “was a clear concoction and is untrue.”She asked the court to stop Gerald from harassing and intimidating her and members of her family.
Sierra said that from August to November 2007, she received verbal and written threats of physical violence from Gerald. She said he also called her office at the Southwestern University three times looking for her.
During the same period, she said Gerald also called the office of her security agency in Cebu City, speaking in “a gruff and threatening tone” which frightened her staff.Gerald also went to her condominium unit in Pasig City where her children were staying last Nov. 12, 2007.
Sierra alleged that Gerald, who was accompanied by Amalia and two unidentified companions, threw things in the lobby of the condominium building and shouted invectives at the reception staff.“Defendant announced to all then present that (Sierra) and Mr. Stevens were having an extra-marital affair, which was a clear concoction and untrue,” she said.
In December 2007, said Sierra, she started receiving messages in her Friendster account from Gerald using the names “Geric Stevens” and “Geric.”In the Internet messages, Gerald called her several “offensive” names and accused her of having an affair with his father, said the complaint.
She said the false accusations have caused her much anxiety.
Sierra attached in her complaint a printout of several email messages sent to her Friendster account dated Dec. 13 and Dec. 14.
An email message sent on Dec. 14 challenged her to view his blog in his Friendster account entitled “My first blog ever: One Reason to Stay in School.”A blog, short for Web log, is a personal website or journal. In his blog, Gerald attached a letter purportedly written by Sierra to his father and said the only reason he was putting up the blog was because of the involvement of Sierra as the “third party” who caused his parents to split up.
According to Sierra, Gerald's blog was “designed solely to humiliate and ridicule” her as well as to malign her name and reputation.On Jan. 8, the Sierra received another message in her Friendster account where Gerald allegedly cursed her. Aside from persistent “defamatory electronic messages”, said Sierra, Gerald went again to the condominium on Jan. 11 in Pasig and accused her of having an affair with his father.Sierra, through her lawyer, sent a letter to Gerald on Jan. 16 demanding that he stop harassing her.She said her rights as a person and a “woman and a mother of good repute” have been violated.
Source: http://globalnation.inquirer.net/cebudailynews/news/view/20080215-119056/Amalias-son-sued
Sunday, April 13, 2008
Magbabayad kayo!
Ako po si Aurora Montano, ina ni DJ Montano. Hindi masamang tao ang aking anak. Mabati po siya'ng bata. Kaya kayong mga naninira sa aking anak, magbabayad kayo. Humanda kayo, bilang na ang mga araw nyo!
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