LAW OF COMMUNICATION
Ella Egotistical is a student at the University of Canberra and has been trying for many years to score a gig as a journalist with the international magazine Trail-Blazer. Trail-Blazer is an online travel magazine targeted specifically at the wealthy English aristocracy. The website is hosted in London, but it has an office in Sydney with several journalists and an editor, Larry Looselips. It is available on a subscription basis, and currently has around 10,000 Australian subscribers. As the subscription fees are not enough to sustain the Australian branch of the magazine, it also receives a funding grant from the Commonwealth Department of Tourist Attracting.
While Ella has never travelled first-class, stayed in a five-star hotel or even been to England before, she thought she could bring a new perspective to the magazine. During the most recent recruitment round, Ella was short-listed for an interview. She travelled to Sydney, and when she arrived at the lobby she was asked by the receptionist, Bettie Blabber, to take seat. Bettie told Ella on her way back to her desk:
I think Larry is on the phone, and he might be a while. The poor thing – he just found out he has terminal cancer, so I think he is talking to his contact at the Department of Tourist Attracting about his succession plan for the magazine. He has an appointment with his doctor later this week. Don’t tell anyone of course!
Ella was very confident in her performance at the interview with Larry, and thought that her straight Distinction academic transcript was sure to impress. She was convinced that this time she would be successful. She even posted a message on the Law of Communication Moodle discussion forum letting the other 200 students in the unit know that she had an interview that week with the editor and would be quitting university to move to the big smoke of Sydney to work at the magazine. All of the students had access to Trail-Blazer through the library’s online database, and were very impressed that Ella would be working for such a prestigious magazine.
Two weeks after the interview, Larry telephoned Ella to tell her that she was not successful. Larry said that Ella simply did not have enough experience. Ella knew Larry was making a big mistake and was not shy in telling him, saying:
You know Larry, I’m studying journalism and I’ve been to over 20 countries. Sure, I might have travelled cattle-class and stayed in back-packer hostels, but I know what the rich want. I’m as bright as any other journalist out there are you’re just too stupid to realise it! Oh, and by the way, my dad is a judge and if you ever come before him he’ll throw the book at you!
Larry was stunned at Ella’s tenacity. He thought about some of his nieces and nephews and wondered whether it was a generational thing. He had to work hard for everyone one of his jobs in the media industry, and now it seems that anyone with an internet connection and a twitter account is calling themselves a ‘blogger’ and holding themselves out as having some kind of authority. Larry thought it would make a great piece for Trail-Blazer. In fact, he was so passionate about the topic, he wrote an article that night and it was published in the next day’s online edition of Trail-Blazer. The article began with the following:
Law of Communication student thinks she knows travel because she’s been to Bali
Just two weeks ago I had the pleasure of interviewing a young lady from Canberra who tried to tell me that she was an expert on first class travel, despite not having any experience travelling five-star. It amazes me the sense of entitlement young white Australians have these days. Especially this one, who got straight passes in all of her subjects. She did not strike me as being the sharpest tool in the shed, and was pretty awful at writing. She even tried to threaten me with her dad – I bet the Hon John Egotistical of the ACT Supreme Court is just as self-centred and corrupt as his daughter, and probably equally bias in his views!
That afternoon, Ella checked her email account and saw an alert for a new article from Trail-Blazer. She accessed the article through the library’s database and was horrified at what she read. She decided to seek revenge, starting with the questionable relationship between the Commonwealth Department of Tourist Attracting and Trail-Blazer. She submitted the following freedom of information request to the Department:
I request all documents containing references to Larry Looselips, especially those that will embarrass Trail-Blazer and the Minister for Tourist Attracting, because I’m going to write an article to bring the whole arrangement down.
In the meantime, she tweets:
Larry sure has a big mouth for someone who’s about to be pushing up daisies. When is he going to tell his loyal followers about his appointment with his doctor?
Part 1 – Problem questions
(1) Has Larry defamed Ella in his online article ‘Law of Communication student thinks she knows travel because she’s been to Bali’ and are any defences available to him? In your answer, discuss any jurisdictional issues that arise in relation to Trail-Blazer. (10 marks)
(2) Has Larry committed scandalising contempt by publishing his article? In your answer, briefly discuss the defences that might be available and what the consequences for Larry might be. (6 marks)
(3) Advise whether you think the Department of Tourist Attracting should disclose under the Freedom of Information Act 1982 (Cth) the record of conversation between Larry and his contact at the Department regarding his succession plan. In your answer, refer to the application of section 47F and the relevance of Ella’s motives for requesting the information. (5 marks)
Part 2 – Essay Question
(4) How do you think Larry’s right to privacy can be balanced with Ella’s right to freedom of expression in this context, and vice versa? Do such rights exist under Australian law? Should they exist? (12 marks)
Part 3 – Multiple choice questions
(5) Which of the following entities referred to in the facts is not bound by the Privacy Act 1988 (Cth)? (select one) (1 mark)
a. The Commonwealth Department of Tourist Attracting.
b. The Minister for Tourist Attracting.
d. Larry’s oncologist (ie his doctor).
(6) Which of the following statements is correct when considering whether Larry’s statement regarding ‘young white Australians’ is unlawful under section 18C(1) of the Racial Discrimination Act 1975 (Cth)? (select one) (1 mark)
a. The act was a public act because it was made on an online forum.
b. The act was not a public act because it was limited to those who had a subscription.
c. Section 18C(1) imposes a subjective test, so it is necessary to prove that at least one person was offended, insulted, humiliated or intimidated.
d. It does not matter who the comment is made about for the purposes of section 18C(1) because dominant majorities are as easily vilified as traditionally oppressed monitories.
(7) Applying the common law test of confidentiality in relation to Bettie’s comments to Ella regarding Larry’s health, which of the following statements is not correct? (select one) (1 mark)
a. It is likely that Larry’s health information would have the necessary quality of confidence about it.
b. It is immaterial in determining breach of confidentiality whether Bettie intended to cause Larry detriment.
c. Larry must prove that someone actually disclosed his confidential information in order to bring an action in court.
d. Disclosure of confidential information would be permitted if Bettie could establish that disclosure was in the public interest.
(8) If Ella were a journalist, which of the following statements is correct in relation to the disclosure of sources? (select one) (1 mark)
a. If a court ordered Ella to disclose her source for Larry’s health information, she would not be compelled to reveal Bettie’s name if it was contrary to her industry code of ethics.
b. Under the common law, there is no specific protection for the protection of journalists’ sources.
c. There are legislative protections which protect journalists’ sources absolutely, regardless of whether the court orders the source to be disclosed.
d. The ‘Newspaper Rule’ has the effect of protecting sources throughout the entire course of legal proceedings.