Scenario: A Australian Legal Problem

Whether Tom Burt can take any action against the Shannon’s for posting negative comments against him?

Defamation is considered as the action through which person spreads bad or wrong things about another person, and such spreaders cause harm to that person. A person can be defamed by spreading false things about that person to the third person. For the purpose of defaming any person, it is not necessary makes the false news by themselves. In other words, person can defame the person by repeating the words said by any other person.

Section 6 of the Defamation Act 2005 states that defamation is the tort under the common law, as per this tort, defamation is concerned in context of the protection of the reputation of the person. This tort is mainly divided into two parts that are slander and Libel. Slander includes the defaming someone orally and Libel focus on the written defamatory statements.

Any plaintiff, who suffered the injury or loss because of the tort of defamation committed by the defendant, can seek compensation in form of damages by the defendant. Defamation includes the communication in any form such as social media, news, letter, etc. by one person to another person.  

For the purpose of seeking damages from the defendant under tort of defamation, plaintiff must prove these three things:

Defamatory statement has been communicated to the third person, which means, statement must be communicated to the third party other than plaintiff.

Communication made by the defendant identified the plaintiff. In other words, plaintiff made the defamation statement clearly against the plaintiff.

Communication made by defendant must be defamatory in nature. in other words, if communication does not damage the reputation of the person then it cannot be considered as the defamation under tort law. It must be noted that, following are the ways through which defamation accusation can be arise in the communication:

• By conducting natural and ordinary meaning of the words.
• Any communication which results in false suggestions in context of person.
• Any communication which results in true suggestions.

In case law Morgan v Odhams Press 1971, story was published by defendant in which defendant communicates that plaintiff involved in the kidnapping. In this case, court stated that statement made by defendant was wrong, and plaintiff can seek damages.

It must be noted that, State passed the uniform defamation laws and also the Act in 2005. These laws are effective from the date of 1^st January 2006.

Currently, Court dealt with number of issues of defamation in context of the social media, and Courts of Australia shows the increasing willingness to give the significant damages to those plaintiffs who are defamed at social media. In the year 2016, NSW Court held that, Facebook post is defamatory in nature because it results in the doubts of a pedophile in the community.

Facts

This can be understood through case law Reid v Dukic [2016] ACTSC 344 in which Court stated that reputation was breached on social media and fall under the defamation law.

There are some defenses which can be used by the defendant against the accusation of defamation made by plaintiff, and these defenses are fair comment, truth or justification, qualified privilege, and other defenses.

In the present case, Tom Brut can file case under tort of defamation against the Shannon’s because they defame the reputation of Mr. Brut by posting “that Mr. Burt is a liar and a thief and had left the café high and dry sabotaging their first day and they are going to sue him”. This is considered as defamation because all the necessary element of defamation are present in this case:

Defamatory statement has been communicated to the third person, which means, statement must be communicated to the third party other than plaintiff. As comment is posted on Facebook, and number of people sees that comment. In Pullman v Hill 1891. In this case, court stated that plaintiff must prove that statement of defamation must be made to any other person. In other words, if that statement was only read by the plaintiff, as there was no publication of the statement then no defamation was made.

Communication made by the defendant identified the plaintiff. In other words, plaintiff made the defamation statement clearly against the plaintiff. Name of Mr. Burt is clearly stated in the comment posted by Shannon’s.

This can be understood through case law Hulton v Jones 1910. In this case, story written by publisher clearly identify the barrister, which means communication of defamation was made against the barrister.

Communication made by defendant must be defamatory in nature. In other words, if communication does not damage the reputation of the person then it cannot be considered as the defamation under tort law. In the present case, comment made by Shannon’s is defamatory in nature as it damages the reputation of Mr. Burt. This can be understood through case law Random House Pty Ltd v Abbott 1999. In this case, statement was published by the defendant which indicates that political parties was changed by two politicians after they indulged in physical relations with two females, and later one of the female married with the one politician. The presentation in this communication was false, as it reflects that each politician fails to comply with their political principles in exchange of their sexual favors. In this case, court allowed the damages to the plaintiff.

Issue

After considering the above facts, it can be said that, Shannon’s defame the reputation of Mr. Burt by posting negative comments.

Conclusion:

Therefore, Mr. Burt can file case under tort of defamation against the Shannon’s for posting the comment on Facebook.

Whether Mr. Tom Burt is liable to face any liability in context of his own actions?

Terms of the contract are considered as most important part of the contract, and it mainly determines the rights and liabilities of the parties enter into the contract. Terms are of two types that are express terms and implied terms. Express terms are defined as those terms which are clearly written in the contract, and on other side, implied terms are introduced by the common law or by statute.

It must be noted that, express terms are considered as those terms which are decided by the parties before entering into the contract. Generally, it is very easy to determine these terms because they are clearly written, but on other occasions it is less clear. For the purpose of creating a binding term, it is necessary for the parties to be promissory in nature. In other words, parties related to the contract must have intention to create legal relations with each other. Intention for this purpose is determined objectively.

In Ellul and Ellul v Oakes, (1972) 3 SASR 377, Supreme Court of South Australia, in which court stated that if statement was not the part of the contract then it was not the contractual statement. In this case, court further stated that if representation was made while negotiating the contract in context of inducing the other party to act upon it by signing the contract, then it can be considered as the prima facie ground to considered it as express term of the contract.

In the present case, while negotiating the contract, it is decided between the parties thatMr. Brut needs to be available till the date 19^th May on telephone in context of providing any assistance required by the Shannon’s.

Later, when Shannon’s call Mr. Burt on the day of opening because of number of issues faced by them, his phone’s ring out and he fail to attend the call. At that time, Shannon’s required the assistance from Mr. Burt because of all the mess happened at the café.

It can be said that Mr. Brut breach the express term of the contract by not providing assistance to the Shannon’s when they required. This statement of availability is the terms which are decided by the parties before entering into the contract. This term is the binding term, and reflects that parties are promissory. Parties related to the contract have intention to create legal relations with each other.

It can be said that, express term of the contract is breached by Mr. Tom Brut.

Conclusion:

Therefore, Shannon’s can take action in context of breach of express term of the contract against the Tom Brut.

References

Legal Vision, Elements of Defamation, <https://legalvision.com.au/defamation/>.

Lavan, 2017, Going viral: social media defamation cases on the rise, <https://www.lavan.com.au/advice/commercial_corporate_litigation/going-viral-social-media-defamation-cases-on-the-rise>.

Law Vision, Law of torts, <https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>.

ACL, Terms of a contract, <https://www.australiancontractlaw.com/law/scope-terms.html#express>.

Morgan v Odhams Press 1971.

Reid v Dukic [2016] ACTSC 344.

Pullman v Hill 1891.

Hulton v Jones 1910.

Random House Pty Ltd v Abbott 1999.

Ellul and Ellul v Oakes, (1972) 3 SASR 377, Supreme Court of South Australia.