Week 5 Self-study Lecture SlidesKIỂM SOÁT TẬP TRUNG KINH TẾ THEO PHÁP LUẬT CẠNH TRANH Ở VIỆT NAM HIỆN NAYKIỂM SOÁT TẬP TRUNG KINH TẾ THEO PHÁP LUẬT CẠNH TRANH Ở VIỆT NAM HIỆN NAY.pptx

KIỂM SOÁT TẬP TRUNG KINH TẾ THEO PHÁP LUẬT CẠNH TRANH Ở VIỆT NAM HIỆN NAYKIỂM SOÁT TẬP TRUNG KINH TẾ THEO PHÁP LUẬT CẠNH TRANH Ở VIỆT NAM HIỆN NAYKIỂM SOÁT TẬP TRUNG KINH TẾ THEO PHÁP LUẬT CẠNH TRANH Ở VIỆT NAM HIỆN NAYKIỂM SOÁT TẬP TRUNG KINH TẾ THEO PHÁP LUẬT CẠNH TRANH Ở VIỆT NAM HIỆN NAYKIỂM SOÁT TẬP TRUNG KINH TẾ THEO PHÁP LUẬT CẠNH TRANH Ở VIỆT NAM HIỆN NAYKIỂM SOÁT TẬP TRUNG KINH TẾ THEO PHÁP LUẬT CẠNH TRANH Ở VIỆT NAM HIỆN NAY

1. Week 5 – Reputation Online

2. Agenda Defamation law Defences Remedies Law Reform Online reviews 2

3. Reputation online 3

4. Defamation Law 4

5. Defamation (1) Defamation in Victoria is a tort – a civil law cause of action. It was developed under common law where it initially split into two different types of claim: libel and slander. Libel was defamation of an individual in writing, while slander was defamation of an individual through speech. In Victoria, the distinction between libel and slander was abolished in 2006 when Australia’s States and Territories adopted uniform defamation legislation. The law relating to defamation is contained in Victoria’s  Defamation Act 2005. 5

6. Defamation (2) Defamation refers to the publication of materials that have a negative impact on the reputation of an individual (the plaintiff) by the person who published it (the defendant). It can include: writing print media online media drawings Other forms of speech 6

7. Defamation (3) The elements of defamation are: The defendant’s statement about the plaintiff was defamatory. The defendant’s statement identified the plaintiff. The defendant’s statement was published to a third party. Some limitations include: The dead cannot be defamed (you have to be living to sue). Larger corporations (above 10 employees) cannot sue in defamation. 7

8. When is a statement defamatory? Although there is no explicit definition of ‘defamatory’ it usually means a statement that: makes ordinary people think less of the plaintiff, causes people to shun or ridicule the plaintiff, or causes the plaintiff to be excluded from society. Eg. In 2015 Woman’s Day published a story claiming Rebel Wilson lied about her age and upbringing for professional advantage. Wilson sued and this was found to be defamatory by the Supreme Court of Victoria in 2016. Although initially awarded 4.5 million in damages (compensation), this was reduced to $600,000 on appeal. 8

9. Identifying the plaintiff The defamatory statement must relate to a specific person or persons, not a general group of people. For example, the statement ‘all lawyers are thieves’ wouldn’t be grounds for me to sue in defamation. However, if narrowed down to a specific group this may be sufficient. Eg. ‘Most of the guest lecturers of LAW2556 are known drug dealers’ would be sufficient even though it doesn’t single out a specific person. 9

10. When is something ‘published’? ‘Publication’ generally means communicated to a third party (someone other than the plaintiff). Sometimes courts distinguish between primary or secondary publishers. It doesn’t need to be published in a newspaper, book, the internet etc. It can include sending an email or text message, making an announcement at a lecture or even just speaking to a friend. Eg. In April this year George Defteros , a Victorian lawyer known for representing organised crime figures such as Mick Gatto successfully sued Google for continuing to publish a 2004 article about his conspiracy to murder charges, which were dropped at committal, in its search results. 10

11. When is something ‘published’? Justice Richards in Defteros v Google LLC [2020] VSC 219: “I find that Google becomes a publisher of the search results that its search engine returns to a user who enters a search query.” Also found providing a hyperlink within the search results “amounted to publication of the webpage”. Source 11

12. Other examples In Von Marburg v Aldred & Anor [2015] VSC 467, the moderator of a Facebook page ‘Rights to Privacy Albury’ was liable as a secondary publisher for defamatory comments made on the page as each comment needed to be approved before publication.  In the UK case of Tamiz v Google Inc [2013] EWCA Civ 68 , the Court of Appeal found that Google could be considered a publisher for defamatory material on its blogging platform once if it becomes aware of the defamatory material and left it to be published. However, in this particular case Google acted appropriately. 12

13. Tweets, TikToks, Instagram posts etc are all ‘published’! 13

14. Multiple publications rule The common law ‘multiple publication rule’ means that any time a third-party accesses the published material, that is a new cause of action. This means re-tweeting or re-publishing defamatory material could give rise to a cause of action. There are plans to alter this rule, given the context of the internet. (This rule has been recently changed to ‘single publication rule’ in four states and one territory (New South Wales, Queensland, South Australia, Victoria and the Australian Capital Territory) – Read this this article to know more. See also this article ) 14

15. Defences 15

16. Defences (1) There are many defences to defamation in Victoria, including: justification  – meaning the published statement is substantially true; contextual truth  – the published statement made imputations that are substantially true so the aggrieved could not have been harmed; absolute privilege  – publications made during parliamentary debates, or in court or tribunal judgments are privileged and immune from defamation claims; qualified privilege  – publication was obligatory for some legal, social or moral reason, but there are limitations; 16

17. Defences (2) public document  – the publication content is also contained in a public document, meaning a parliamentary debate, court or tribunal judgment, or other governmental publication; fair report – the publication was contained in any fair report of proceeding of public concern; honest opinion  – the publication was a statement of opinion rather than fact; innocent dissemination – the distributor of the publication did not have control over the content of the publication; triviality  – the aggrieved is unlikely to sustain any harm (has been recently removed in four states and one territory – Read this article to know more.) 17

18. Honest opinion (1) Honest opinion will be a defence if the statement was: an expression of opinion rather than a statement of fact, made in relation to a matter of public interest, based on “proper material” (that is material that is substantially true); Eg. In McEloney v Massey [2015] WADC 126 a woman who called an accountant "unprofessional, rude and obnoxious" in a Facebook review succeeding in defending against a claim of defamation on the basis on honest opinion. 18

19. Honest opinion (2) Some of the alleged defamatory posts in McEloney v Massey [2015] WADC 126: 19

20. Honest opinion (3) Chief Justice Schoombee in McEloney v Massey [2015] WADC 126: “The expectation and understanding of a reasonable reader with regard to the forum on which and the circumstances under which a statement is made are important. The ordinary and reasonable reader of a restaurant review would not regard the statement that a dish was 'inedible' as meaning that it was unfit for human consumption, but would realise that this conveyed the writer's opinion that the dish was unpalatable” [117] “It would have been obvious to a reasonable reader of the Poms in Perth Facebook page that Ms Massey was expressing her opinion about a particular service that she had received when she said that Mr McEloney was rude and unprofessional and displayed poor interpersonal skills.” [121] 20

21. Innocent dissemination (1) Innocent dissemination if:  the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor ; and the defendant neither knew, nor ought reasonably to have known , that the matter was defamatory; and the defendant's lack of knowledge was not due to any negligence on the part of the defendant. 21

22. Innocent dissemination (2) A person is a  subordinate distributor  of defamatory matter if the person— was not the first or primary distributor of the matter; and was not the author or originator of the matter; and did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published. Examples: booksellers, newsagents, librarians, wholesalers/retailers, broadcaster of live programs. 22

23. Innocent dissemination and Facebook (1) Traditionally news organisations and broadcasters have assumed they were protected due to innocent dissemination from defamatory statements made by others on their social media platforms. However, Dylan Voller a former youth detainee in NT who became the subject of various stories about youth in custody successfully sued The Sydney Morning Herald, The Australian, The Centralian Advocate, Sky News Australia and The Bolt Report for defamatory comments made on their Facebook pages. Source 23

24. Platforming defamatory statements? (1) Justice Rothman in Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766: ‘ A public Facebook page is, on the foregoing basis, unique. It allows the publication of the Facebook page and comments by the Administrator, but allows the Administrator to forbid all comments by others. Further, by the use of a list of prohibited words that includes words that would be necessary to render any comment intelligible, such as all pronouns; the definite and indefinite articles; and all conjunctions and prepositions, the Administrator is able to hide all comments, pending the monitoring of such comments .’ 24

25. Platforming defamatory statements? (2) Justice Rothham : ‘ In conclusion, the Court, as presently constituted, is satisfied, on the balance of probabilities, that the defendant media company in each proceeding is a first or primary publisher, in relation to the general readership of the Facebook page it operates. As a consequence of that classification, the defence of innocent dissemination would not arise .’ 25

26. Why aren’t social media companies more liable? Section 91 of Schedule 5 of the Broadcast Services Act ( Cth ) states that law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it: subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host to liability (whether criminal or civil) in respect of hosting particular internet content in a case where the host was not aware of the nature of the internet content ; or […] subjects, or would have the effect (whether direct or indirect) of subjecting, an internet service provider to liability (whether criminal or civil) in respect of carrying particular internet content in a case where the service provider was not aware of the nature of the internet content. 26

27. Triviality It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. In Smith v Lucht [2016], a lawyer’s claim that statements made by his former son-in-law in the presence of his daughter and their son calling him ‘Dennis Denuto ’ from The Castle (1997) did not constitute compensable harm. ‘Hurt feelings’ isn’t enough.  (This defence has been recently removed in in four states and one territory – Read this this article to know more.) Source 27

28. Remedies 28

29. Potential remedies Compensatory damages : for both economic and non-economic loss suffered, however the latter is capped at ~$250,000 in Victoria. Injunctive relief: prohibited the continued publication of certain material. *Exemplary or punitive damages designed to punish the publisher cannot be awarded for defamation. 29

30. Compensatory damages Defamation 30

31. Compensatory damages Economic loss (work, medical costs, future profits) Non-economic loss (pain and suffering) capped at $250,000 Reputation 31

32. Social media and defamation actions There has been a dramatic rise in defamation actions being made over social media posts. However, defamation cases can take months to years to finalise and it’s very unlikely that the remedies are worth the legal hardship. Even when awarded costs (which is no guaranteed) this generally doesn’t cover all fees related to civil proceedings. 32

33. Defamation: For the Rich and Famous? Geoffrey Rush was awarded $2.9 million in damages for publications that alleged he acted inappropriately towards a co-star. Included $850,000 in general and aggravated damages, $1.9 million for past and future economic loss, and $42,000 in interest. Source 33

34. Criminal defamation In Victoria, criminal proceedings for defamation may be initiated if the publisher knew the defamatory statement was false or had no regard its truth/falsity at the time of publication. This offence exists under common law. The penalty for publication of malicious defamatory content is a fine as the court sees fit, and/or imprisonment for up to 1 year. If the publisher knows the material to be false, the term of imprisonment increases to a maximum of 2 years. *Incredibly rare for this to occur. 34

35. Defamation Reform 35

36. Changes to Defamation Law (1) From 1 July 2021 , Victoria, New South Wales, South Australia, and Queensland introduced changes to the defamation laws. Key changes brought about by the Model Defamation Amendment Provisions 2020 (“New Defamation Laws”) include the following: the serious harm element; the single publication rule; the expanded definition of employees; new requirements for a Concerns Notice; the new public interest defence; clarification of the honest opinion defence; modified qualified privilege defence; academic publications defence; damages. Please learn the details from one of this week’s reading (already posted on Canvas): Peter Divitcos , ' Changes to the Australian Uniform Defamation Laws',  Links to an external site. Stephens Lawyers & Consultants (Web Page, 2021). 36

37. More on the way… There is also second-stage defamation review underway which is looking specifically at the liability of social media companies. Federal Attorneys-General ( A-G) Christian Porter has hinted at removing protections for content service providers (like Facebook) from defamation actions. Source 37

38. Online Reviews 38

39. Competitors Behaving Badly A common complaint by businesses is that online reviews are misleading either because: Businesses are faking online reviews for themselves or purchasing false reviews; or Are deliberately giving negative reviews to their competitors. Although this could fall within defamation law, consumer and competition law is also relevant. Source 39

40. Misleading and deceptive conduct Section 18 of Australian Consumer Law (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 40

41. When is it misleading and deceptive? Reviews may mislead consumers if they are presented as impartial, but were written by: the reviewed business a competitor someone paid to write the review who has not used the product someone who has used the product but written an inflated review to receive a financial or non-financial benefit. 41

42. From the ACCC Website The ACCC considers conduct such as the following to be misleading. You should not: encourage family and friends to write reviews about your business without disclosing their personal connection with your business in that review write reviews when you have not experienced the good or service reviewed or which do not reflect a genuinely held opinion solicit others to write reviews about your business or a competitor’s business if they have not experienced the good or service. 42

43. Misleading and deceptive conduct: ACCC v Meriton (1) In ACCC v Meriton (2017) a popular property developer tampered with the online review process to minimise negative reviews about their serviced apartments and hotels. The developer used TripAdvisor’s ‘Review Express’ service, where he would provide guests’ email addresses to TripAdvisor, who would then contact guests to request a review. Source 43

44. Misleading and deceptive conduct: ACCC v Meriton (2) The developer misled consumers in two ways by: adding additional letters to email addresses of users who had a negative experience, in particular, users who had already complained. As a result, those users did not receive the emails sent by TripAdvisor; and removing the email addresses of users who stayed during a disruption such as a power outage or construction work. They were fined $3 million by the ACCC for this conduct. 44

45. The future of reputation online: a losing battle? Maintaining good reputation, given the online space, is an increasingly difficult task. Although legal actions exist when defamed online, they are largely cost prohibitive. Moreover, a ‘Streisand effect’ occurs when legal action is taken. How should we handle defamatory statements into the future? Stephen Elliot Source 45