Misleading Conduct & Economic Torts
Monday, 8 July 2019 2:50 PM
TOPIC 1 - INTRODUCTION TO DEFAMATION LAW AND DEFAMATORY MEANINGS
Tort- A
tort is simply wrongful conduct that gives rise to a civil remedy such as damages.
Tort committed where D communicates to a third party (TP) material which lowers the reputation of P in the eyes of ordinary persons.
Defamation-
Allows someone to take legal action where disparaging comments have been made about them that tarnish their reputation.
• Lowers reputation
Protects personal reputation + business reputation and professional reputation.
SAME TEST FOR ALL: Would a reasonable person, applying general community standards and values, think less of the plaintiff?
*A tort of strict liability- NO need to show 'fault' or an intention to injure P*
National Defamation Laws
In effect from January 2006
Each Australian State and Territory has enacted uniform legislation.
Defamation Act 2005 (Vic):
• Abolishes distinction between libel and slander
• Restricts the rights of corporations to sue
• A new statutory qualified privilege defence
• Reforms damages, e.g. By capping non-economic losses.
Libel -
Defamation in a permanent form (Written material)Slander
- Defamation in a transient form (spoken form)• Historically, slander only actionable with proof of special damage (demotion or lost job).
• Defamation Act abolishes distinction between libel and slander.
• All defamatory matter is actionable per se without proof of special damage, regardless of whether libel or slander at common law.
Element 1 of a Defamation Claim: Defamatory Matter The matter must convey a defamatory meaning or imputation.
• What meanings would the ordinary reasonable person give to the matter?
• Would the ordinary reasonable person think less of the plaintiff as a result?
Characteristics of the ordinary reasonable person-
• Is a hypothetical referee, representing a single standard used by the courts to determine whether the matter conveys the alleged meanings.
• Is fair and objective
• Will engage in a degree of 'loose thinking'
• Has the ability to draw defamatory imputations by 'reading between the lines' - will draw meanings by implications from the words and/or visual images used
• Has 'general knowledge and experience of worldly affairs'
How can meaning be imposed?
Literal Word Legal Innuendo
Popular Innuendo- reading between the lines of what is said
TOPIC 2 - MISINFORMATION TORTS
The torts of deceit, injurious falsehood and negligent misrepresentation often called the 'misinformation torts' also provide a cause of action for false or misleading
statements that result in economic loss. The statement may affect reputation, but the primary objective of these torts is to protect against economic loss, not to protect reputation.
The Tort of Deceit:
• The tort of deceit is committed where the defendant fraudulently makes a false representation to the plaintiff with the intention the plaintiff will rely on it, and the plaintiff does rely on it and suffers loss as a result.
The Elements of the Tort of Deceit-
• The defendant made a false representation to the plaintiff
• The defendant made the representation fraudulently
• The defendant intended the plaintiff to believe in and rely on the representation
• The plaintiff did act in reliance on the representation, and
• The plaintiff suffered damage
• The gist of the tort of deceit is the element of fraudulent intent. This is a difficult element to prove as it requires proof that the defendant held a particular state of mind at the time of making the representation.
• While the ordinary standard of proof in civil actions applies (balance of
probabilities) it has been held that the courts should not likely make a finding of fraud and that cogent evidence of a fraudulent intent is required.
Interaction with s 18 of the ACL:
• Due to the (often insuperable) practical difficulties of establishing the element of fraud, most plaintiffs would prefer to rely on the statutory remedies provided for false representations and misleading conduct contained in the ACL, in particular s 18 of the ACL which prohibits misleading or deceptive conduct in trade or
commerce.
