free speech: December 2007 Archives
A very recent judgment of the NSW Supreme Court -- Frawley v The State of New South Wales [2007] NSWSC 1379 -- dealt with a defamation case brought by a high school teacher against the NSW government, involving allegedly defamatory remarks about the teacher that were posted on the Internet.
Much of the judgment deals with procedural issues; counsel for the plaintiff attempted at the last minute to put to the jury an alternative basis for liability that had not been pleaded, which the Court did not allow. But the facts of the case, and the jury's finding, are interesting...
The facts, briefly outlined are:
The relevant principles are found in Urbanchich v Drummoyne Municipal Council (1991) Aust Tort Reports 81-127, and was extracted in the Frawley judgment at [4]. In that case, which concerned allegedly defamatory posters displayed at bus stops, Hunt J held that where the defendant:
this was capable of amounting to publication by the defendant, provided that the jury also draws the inference from such conduct that the defendant had in fact accepted a responsibility for the continued publication of the material. In Frawley, the jury held that the defendant had not 'published' the material in this sense, and judgment was given to the defendant.
Much of the judgment deals with procedural issues; counsel for the plaintiff attempted at the last minute to put to the jury an alternative basis for liability that had not been pleaded, which the Court did not allow. But the facts of the case, and the jury's finding, are interesting...
The facts, briefly outlined are:
The plaintiff alleged that the Department of Education published the material on computers owned by it when people accessed the web pages on the school's computer equipment.
- The plaintiff was a teacher at a State high school;
- Unknown persons placed on an Internet site material which the plaintiff claimed defamed him (I imagine this was some kind of 'rate your teacher' type site, but the nature of the material isn't discussed in the judgment);
- He complained to the Department of Education, and the school administration about the allegedly defamatory material, and asked that access to that material from the school's computers be blocked; and
- The Department and the school's administrators failed to block access to the material.
The relevant principles are found in Urbanchich v Drummoyne Municipal Council (1991) Aust Tort Reports 81-127, and was extracted in the Frawley judgment at [4]. In that case, which concerned allegedly defamatory posters displayed at bus stops, Hunt J held that where the defendant:
- Had been notified of the existance of the defamatory material;
- Had been requested to remove the material or to obliterate its contents;
- Had the ability to do so; and
- Had failed within a reasonable period to do so
this was capable of amounting to publication by the defendant, provided that the jury also draws the inference from such conduct that the defendant had in fact accepted a responsibility for the continued publication of the material. In Frawley, the jury held that the defendant had not 'published' the material in this sense, and judgment was given to the defendant.
