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Defamation in Media Law and Film Industry

Introduction

People often protect their reputation since a good reputation allows them to achieve their personal goals, whether social or financial. Various international instruments and local legislation have been formulated to protect people’s image from the public. Therefore, it is unlawful to use a person’s image, whether oral or written, depicting them as ill-mannered. The false representation of people’s images unjustly harms their reputation and constitutes a tort, a criminal offense. The journalism industry represents various characters and people in society through written stories and reports. The industry is susceptible to defamation which may be costly to the directors and the professional communicators. Often, professional communicators are involved in critiquing films and writing reviews. The activities should be carefully considered to avoid defaming the film characters or anyone related to the film. Professional communicators must consider the elements and defenses of defamation to create a safe working place. This paper discusses defamation in media law, focusing on its elements, defenses, and safe work practice.

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Defamation and Media Law

The Media law exists to protect the fundamental freedom of expression and media as expressed in various international instruments. The Australian constitution does not cover the freedom of expression. However, the High court held that the freedom impliedly exists as an essential part of the system’s representatives and government formed under the constitutions (Hardy and Williams, 2021). Therefore, freedom of expression is free from the government’s limitation, and not conferred directly on the Australians (Polden and Pearson, 1997/2019). Professional communicators are restrained from falsely representing other people by exercising their freedom of expression through journal writing and article writing on any other media. Many professional communicators falsely represent people’s characters to gain a public audience and increase their sales. However, some representations may be innocently made. It is recommended for the film reviewers to ensure that their representation does not amount to defamation. The Defamation Act of 2005 presents the elements of defamation that could qualify a defamation claim.

Defamation, Elements

Defamatory statements can be expressed through written materials, pictures, or spoken statements. Film reviewers have the difficult task of identifying a defamatory statement in the films. However, the basic element of identifying a defamatory statement is the presence of imputation. Imputation refers to a negative averment or claim about a particular person or their behavior (Polden and Pearson, 1997/2019). The case of Wilson versus Bauer Media Pty Ltd is a preceding case on the significance of identifying imputation in any defamation case. Australian high court and Court of Appeal accepted that Mr Bauer’s claims constituted imputation (2018). However, imputation is not sufficient enough in determining defamation. It is a statutory requirement that the material should be communicated to the third person. The communication caused the third person to form a reduced opinion of themselves, which caused an injury to their reputation.

Communicate to a Third Person

Defamation is expressed in various media, and some may not directly mention the name of the plaintiff, the defamed claimant. The Defamation Act of 2005 requires the plaintiff to prove that the material defamed them by communicating to them. The element is always straightforward when the plaintiff’s name is directly mentioned. Where the claimant is identified with other names, the film reviewer cannot evade the charges by using nick names. Furthermore, overt images of the plaintiff may amount to sufficient communication of the defamatory statement. In the appeal case of Trkulja versus Google, the Court of Appeal allowed the plaintiff’s appeal. Google was held liable for publishing the plaintiff’s image through its search engine (Trkulja v Google LLC, 2018). Defamatory statements communicated to the public are rarely sucked due to the lack of a specific defamed person.

Communication Caused a Reduced Opinion

Reduced opinion of a person’s character is a significant element as it proves the statements’ falsehood. The suing party is obliged to prove that the statement constituting defamation presented a reduced opinion of their character. A reduced opinion of the character means that the statement presented a negative character, which is untrue. The courts expect the ordinary or general viewer of the alleged defamatory material to engage in “loose thinking” (Bonica and Klein, 2021). Although an opinion or imputation could hurt or upset a plaintiff, that is not sufficient for a statement to be defamatory. The courts would want proof that the state directly harmed the plaintiff’s reputation.

The Communication Caused an Injury

The cause of an injury is a crucial element of any defaming statement. The injury caused should be due to the false representation of a character. People’s character is crucial, especially if a person is a public figure and his reputation matters. Although the law is not limited to who can sue for defamation and who cannot sue, defaming persons of professionals that require high reputation standards could be dire. For instance, falsely presenting a judicial officer as corrupt could attract heavy damages and compensation. For instance, there is an ongoing case of Mossack Fonseca & Co versus Netflix Inc (2019). In this case, Netflix was sued for defaming the Panamanian law firm for producing a film that depicted its events with its German clients’ documents leaked (Toubul, 2021, p.16). The case has gained global attention, and its decision will be a landmark in corporate libel cases.

The injury caused on reputation can be proved by loss of income due to the defaming statement. Rebel’s case is a landmark case in which the plaintiff sued for injuries made to her feelings, credit, and reputation (Rolph and Douglas, 2018). Defamation amounts to injury on reputation, which must be proved. A film review could positively or negatively impact the number of viewers. A professional communicator may write a film review that presents the film as boring or perhaps as a film against society’s dogma. Society would shy away from watching such a film, and increased criticism of the film is possible. Consequently, the filmmakers might suffer economic loss, which could be blamed on the film review. A suite for defamation might arise, and the professional communicator should seek all the available defenses.

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Defamatory, Defenses

A Defense of Fair Comment

Fair comment is an unbiased statement that can be a defense under Common law. Statutory defense of honest opinion under section 31 of Uniform Defamation Law, has similar tenets to the defense of fair comment. Although the two defenses are different, there are some common observations. The defense requires the defendant’s professional communicators to prove that their communication was an opinion and not facts, and the opinion should present a public interest matter. The material should be substantially true and attract the protection of absolute privilege. the accused must prove that the material in question is contained in public documents. “Fair” comment does not necessarily mean that the opinion should be objectively reasonable but honestly held by the communicator (Bird, 2020, p.84). Film reviewers are best defended by the fair comment and honest opinion defenses.

Qualified Privilege

Section 30 of the Defamation Act of 2005(NSW) provides for the defense of qualified privilege. The qualified privilege is explicitly applicable where the professional communicator has a legal obligation to disseminate information to persons with the privileges of receiving the information. Therefore, the link between the communicator and the recipient is very crucial for the defense. The defense ceases to exist when the communicator exceeds the duty. The communicator’s conduct reasonableness in the prevailing circumstances is crucial (Bird, 2020, p.87). However, the defense may fail in circumstances where it is realized that the communicator was motivated by malice to defame the plaintiff.

Innocent dissemination Defense

Subordinate publishers, including film reviewers, can defend themselves using the innocent dissemination defense under section 32 of the Defamation Act 2005 (NSW). Primary publishers such as filmmakers, editors, and directors cannot bring forward the defense. The reviewers must establish that they were unaware that the information was defamatory, and their obliviousness was not due to their negligence. The defense was demonstrated in the case of Defteros v Google LLA [2020] VSC 2019 and its subsequent appeal. The court found the defamatory material was sufficient and put Google on notice as a secondary publisher (Dixit, 2021).

Defense of Triviality

Injury is one of the basic elements of a defamatory claim; however, the plaintiff is unlikely to get harmed in some cases. The professional communicator may use the defense of triviality under section 33 of the Defamation Act of 2005 (NSW). The communicator should prove that the defamation in question does not seriously affect the complaints’ reputation or community standing. The defense of triviality involves an attack on the suit at the initial states. However, the Australian courts rarely allow such defense, and it would be prudent if the defendant carefully considered the circumstances surrounding the case.

Safe Work Practice for a Film Critic

Film critics risk being sued for defamation and spend much time on legal proceedings, which are equally costly. Increased defamatory claims against film reviewers can affect customer ratings on their sites and works. To avoid defamatory actions, professional communicators must adopt professional ethics. Professional ethics includes giving an unbiased film review. The unbiased opinion my offer the reviewer chances of winning a defamatory case. The reviewers should always have a public interest in mind when communicating. Having a public interest in mind would help the reviewers avoid defamatory claims from the specific plaintiff. Where the reviewers have to use names that could be potentially defamatory, they should instead use fictional names unrelated to the recipient of the communication. Safe work practices such as having a public interest in mind and avoiding biased opinions help film reviewers avoid defamatory suits.

Conclusion

Defamation is common in the film industry, and film reviewers face a potential defamation suit. Defamation can be established upon identifying the basic elements of defamation: communication to a third party, communication caused reduced to opinion, and the defendant suffered an injury. If a film reviewer is sued for defamation, several defenses are available at their disposal: defense of honest opinion and fair comment, qualified privilege, triviality, and innocent dissemination. Lawsuits are expensive and time-consuming. Therefore, the film critics should adopt safe work practices to avoid defamations. They are having a public interest in mind while drafting reviews is key. Furthermore, the reviewers should avoid biases and give honest opinions. Defamation is an evolving issue that professional communicators should avoid in their daily practice.

References

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 – BarNet Jade. (2018). Jade.io. Web.

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Bonica, M. J., & Klein, D. B. (2021). Adam Smith on Reputation, Commutative Justice, and Defamation Laws. Journal of Economic Behavior & Organization, 184, 788-803. Web.

Dixit, P. P. (2021). From gatekeepers to publishers: Liability of internet intermediaries in India for hosting defamatory content. Computer Law & Security Review, 41, 105558. Web.

Bird, F. (2020). A Defence of Objectivity in the Social Sciences, Rightly Understood. Sustainability: Science, Practice and Policy, 16(1), 83-98. Web.

Hardy, K., & Williams, G. (2021). Press Freedom in Australia’s Constitutional System. Can. J. Comp. & Contemp. L., 7, 222. Web.

Legislation, S. A. (2021, November 22). LZ. South Australian Legislation. Web.

Polden, M., & Pearson, M. (2019). The Journalist’s Guide to Media Law (6th ed.). (Original work published 1997).

Rolph, D., & Douglas, M. (2018). Movie Star Wars: Bauer Media Strikes Back, or a Lost Hope? Web.

Touboul, B. (2021). Professional Facilitators. In Servants of the Devil: The Facilitators of the Criminal and Terrorist Networks (pp. 9-24).

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Trkulja v Google LLC [2018] HCA 25 (13 June 2018). (2018). Austlii.edu.au. Web.

List of Cases Used

Defteros v Google LLA [2020] VSC 2019.

Mossack Fonseca & Co versus Netflix Inc [2019] Civil No. 3:19cv1618 (JBA).

Trkulja v Google LLC [2018] HCA 25.

Wilson v Bauer Media Pty Ltd [2017] VSC 521.

List of Legislations

The Defamation Act of 2005 (NSW).

The Uniform Defamation Laws 2006.

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