MISLEADING CONDUCT AND ECONOMIC TORTS TOPICS
1. DEFAMATION LAW
- DEFAMATION AND DEFAMATORY MATTER - IDENTIFICATION AND PUBLICATION - DEFAMATION DEFENCES AND DAMAGES 2. MISINFORMATION TORTS
- THE TOT OF DECEIT
- TORT OF INJURIOUS FALSEHOOD - NEGLIGENT MISREPRESENTATION
3. THE STATUTORY PROHIBITIONS ON MISLEADING CONDUCT AND FALSE OR MISLEADING REPRESENTATIONS
- ACL – SECTION 18
- FALSE CLAIMS IN ADVERTISING - PASSING OFF CLAIMS
- SPECIFIC PROHIBITIONS ON FALSE OR MISLEADING REPRESENTATIONS IN ADVERTISING 4. LIABILITY OF MANUFACTURES FOR DEFECTIVE GOODS
- LIABILITY IN NEGLIGENCE - LIABILITY UNDER PART 3-5 - DEFENCES
5. OTHER TORTS PROTECTING ECONOMIC INTERESTS
- THE TORT OF INTERREFERENCE WITH CONTRACTUAL RELATIONS - THE TORT OF INTIMIDATION
- THE TORT OF CONSPIRACY RECOVERY IN NEGLIGENCE FOR ACTS CAUSING PURE ECONOMIC LOSS
ANSWERING GUIDE
1. Has a prima facie defamation claim been established where there was defamatory matter conveyed to a TP that lowered the P’s reputation as a result and you need to defend this claim?
- Defamation defences
2. Was there a fraudulent misrepresentation that the plaintiff relied on and suffered loss as a result?
- The tort of deceit
3. Did D maliciously make false statements about the P’s goods, business or profession in order to damage P?
- Injurious falsehood
4. Did D make a negligent statement or give negligent advice that P relied on to their detriment?
- Negligent misrepresentation
5. Were there misleading or deceptive statements that occurred in trade or commerce that resulted in P being misled or deceived?
- S 18 ACL
6. Did that misleading or deceptive conduct occur in advertising?
- False claims in advertising
7. Did D falsely represent that their business, goods or services are that of another’s or that they are associated with that other’s established business?
- The tort of passing off
8. Was there a false or misleading representation that the goods were of a particular standard, quality, value, grade, composition, style or model?
- S 29(1)(a)-(b) ACL
9. Was there a false or misleading testimonial about the goods or services or talk about such testimonials?
- S 29(1)(e)-(f) ACL
10. Was there a false or misleading representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits that it doesn’t have?
- S 29(1)(g)-(h) ACL
11. Were there false or misleading representations about the price of the goods or services?
- S 29(1)(i) ACL
12. Was there a false or misleading representation that the goods were produced or made in a certain place?
- S 29(1)(k) ACL
13. Were there false or misleading representations concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy?
- S 29 (1)(m)-(n) ACL
14. Was there misleading conduct in trade or commerce that is liable to mislead the public as to the nature, characteristics, suitability or quantity of any goods or services?
- Ss 33, 34 ACL
15. Did the manufacturer supply unsafe products that caused harm like personal injury or property damage?
- Part 3-5 ACL manufacturer liability
16. Was there pure eco loss as a result of the D’s negligent act that damages the property of D or a TP?
- Eco loss consequential upon damage to property of the D or TP – ‘Relational Loss’
17. Did P suffer eco loss as a result of a defective building?
- Loss resulting from a defect in a building
18. Did D intentionally induce a TP to breach a contract with the P?
- The tort of interference with contractual relations
19. Did D make a threat coupled with a demand to commit an unlawful act that resulted in P suffering loss or damage?
- The tort of intimidation
20. Did 2 or more people combine to harm the P with the intent of causing eco loss to P and injury results?
- The tort of conspiracy
TOPIC 1 – DEFAMATION
Defamation provides a cause of action to those who had their reputation lowered as a result of another’s publication in the eyes of an ORP.
ANSWERING GUIDE:
STEP 1: ARE THEY PROTECTED, AND CAN THEY SUE?
Protected– personal, professional and business reputation Not protected – hurt, distress or breaches of privacy (s 25) Who can’t sue –
- Estates of deceased persons (s 10)
- Elected government bodies and statutory authorities (s 9) - Corporations unless pursuant to s 9 –
i. It is a not-for-profit organisation or
ii. It employs fewer than 10 people and is not related to another corporations and it is not a public body
STEP 2: ESTABLISH DEFAMATION BY APPLYING THE TEST
1. The matter conveys a defamatory meaning or imputation 2. The plaintiff is identified or identifiable from the matter 3. The matter is published to a third party
ELEMENT ONE: THE MATTER CONVEYS A DEFAMATORY MEANING OR IMPUTATION This element requires the following 2 steps –
• Step 1: What meanings would the ORP give to the matter?
Who is the ORP? They are of average intelligence and education and approach the question in an objective manner. They are not perverse or overly suspicious, they will engage in loose thinking with the ability to read between the lines (Lewis v Daily Telegraph; Trkulja v Google) Are the meanings express, popular innuendoes or legal innuendoes?
Popular or false innuendoes - might be derived from ‘reading between the lines’ or by giving a particular word or phrase a commonly accepted secondary meaning
Legal’ or true innuendoes - which may be drawn from the words used in conjunction with extrinsic facts known to some persons to whom the matter is communicated. This category of innuendo is an exception to the general rule that an ORP is said to have only general knowledge - List the meanings that would be conveyed (not what is expressly written)
- The issue is what was conveyed and not what was meant or intended
- The judge will reject meanings that are strained, forced or an utterly unreasonable interpretation (Jones v Skelton)
- Publication must be considered as a whole (Hockey v Fairfax)
- Mode and manner of publication must be considered e.g. gossip magazine less credible than a newspaper and a radio announcer can only be heard once unless repeated where as a
newspaper article can keep being read
• Step 2: Would the ORP think less of the plaintiff as a result?
Did the meanings actually lower the plaintiff’s personal, social, business or professional
reputation, or expose the plaintiff to ridicule or cause others to shun or to avoid the plaintiff by
the ORP applying the social and moral standards held by the community as a whole Radio 2UE Sydney v Chesterton.
Sim v Stretch – “The effect of the imputation on right thinking people in the community to determine whether the plaintiff’s standing in the community has been lowered.”
- Where the statement would only be defamatory in their minority and not the general Australian community, there will be no cause of action for defamation.
ELEMENT TWO: THE PLAINTIFF IS IDENTIFIED OR IDENTIFIABLE FROM THE MATTER
The plaintiff will have to establish that ordinary, reasonable recipients of the matter would reasonably identify the plaintiff as the subject of the defamation.
This is straight-forward where the plaintiff is expressly named but further examination is required where they are not expressly named or where the matter is capable of referring to more than one person with the same name.
A group of people of which the plaintiff is a member - No special rules apply here
Identifiable only with extrinsic facts
- General rule is that they must know of these facts at the time of publication
- However, identification can be based on the knowledge acquired from a subsequent search, where there is an implicit invitation to undertake such a search (Fairfax v Pedavoli)
- The plaintiff must be able to establish that the matter was conveyed to at least 1 person with the extrinsic facts and identified the plaintiff as a result and the recipient was an ORP (Younan v Nationwide News; Mirror Newspapers v World Hosts)
Capable of referring to more than one person
- E.g. a person with the same name (Lee v Wilson) (cummings horse racing case) ELEMENT THREE: THE MATTER IS PUBLISHED TO A THIRD PARTY
Are they a primary publisher or subordinate/secondary publisher?
Primary publisher – the main publisher where they were involved in authorising or creating the matter or had the capacity to exercise editorial control over its content
Subordinate publisher – merely involved in the physical process of disseminating the matter (s 32(2)).
Defence of innocent disseminator – a subordinate publisher can rely on the defence of innocent disseminator and will only be held liable where they were put on notice that the publication involves defamatory matter, a primary publisher cannot rely on this defence.
Internet/social media
- No special rules for online content, ordinary defamatory principles will apply
- Internet intermediaries may be liable, those who did not create the content or have editorial control over it. These include –
i. Internet service providers
ii. Providers of a blogging or social media platforms used to create individual blogs or social media accounts
iii. Individual hosts or admins of blogs, websites or social media pages on which third party created content is created
- A person will not be liable merely for ‘liking’ the post as this does not amount to a sufficient endorsement or acceptance of responsibility for the post to attract liability as a publisher of it: Bolton v Stoltenberg.
- Von Marburg v Aldred – liability as a primary publisher will attach for failure to remove defamatory matter where they were requested to remove it and didn’t, evidencing an acceptance of responsibility for its continued publication.
Hyperlinks
Crookes v Newton held that the operators of a website will not be liable as publishers of hyperlinked matter because a hyperlink would not be a publication of the linked content because that content can be changed at any time. However, another opinion held by the court is that it would be different if the text indicated ‘adoption or endorsement of the content of the hyperlinked text.’ Visscher v Maritime Union Search Engine Providers
May also be liable for the dissemination of defamatory material. The HC decision in Trkulja v Google paves the way for a defamation claim against search engine providers as publishers of defamatory search results and auto complete predictions.
FURTHER RULES
1. The defamatory matter identifying the plaintiff must be published to at least one third-party, publication to the plaintiff does not suffice
Pullman v Walter Hill & Co; Dow Jones & Co v Gutnick 2. Communications by the defendant to a spouse are exempt
Wenhak v Morgan
3. Defamatory matter is published when it is made available in a comprehensible form Dow Jones & Co v Gutnick; Sims v Jooste
4. Publication might be inferred from the surrounding circumstances Fullam v Newcastle Chronicle; Sims v Jooste
5. Defendant is liable for reasonably foreseeable publications Sims v Wran; Theaker v Richardson
6. The original publisher is liable for republications of the defamatory matter where there were intended, authorised, or could reasonably be foreseen as a significant risk
Baturina v Times Newspaper; Cummings v Fairfax Digital Australia
7. A party repeating or republishing defamatory matter is liable to the same extent as the original publisher
Lewis v Daily Telegraph; John Fairfax v Rivkin
8. Any person who participates in the publication of defamatory matter is liable as a publisher in the absence of a defence
Duffy v Google; Trkulja v Google
