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6 th Professional Development Seminar for Parliamentary Officers Thursday, 27 January 2005 Free speech 6 th Professional Development Seminar for Parliamentary Officers Thursday, 27 January 2005 Free speech and Article 9 – a review of recent cases and emerging issues

OVERVIEW • Freedom of speech and debates and modern communications, especially publication and broadcast OVERVIEW • Freedom of speech and debates and modern communications, especially publication and broadcast via the Internet and the implications of the decision in Dow Jones & Company Inc. v Gutnick [2002] HCA 56 • The use of parliamentary debates to increase a damages award in a defamation action and the decision in Erglis v. Buckely and Others [2004] QCA 223 • Freedom of Information and Parliamentary Proceedings • Modern judicial attitudes to parliamentary privilege – lessons for the future.

Freedom of speech and debates and modern communications Lord Bingham of Cornhill: “in its Freedom of speech and debates and modern communications Lord Bingham of Cornhill: “in its impact on the law of defamation, the Internet will require almost every concept and rule in the field. . . to be reconsidered in the light of this unique medium of instant worldwide communication. "

Freedom of speech and debates and modern communications • Consider whether “broadcasts” require additional Freedom of speech and debates and modern communications • Consider whether “broadcasts” require additional legislative protection. (Are they covered by existing legislative provisions in each jurisdiction? ) • Is “publication” of a proceeding in Parliament absolutely privileged on the Internet and what are the implications as regards possible publication in many jurisdictions.

Freedom of speech and debates and modern communications • The Table “Parliamentary Privilege and Freedom of speech and debates and modern communications • The Table “Parliamentary Privilege and Modern Communications”. • “law tends to lag technology and the application of technology and there is a hiatus period where there is uncertainty as to the application of old law to new technologies”

Freedom of speech and debates and modern communications • Old law: Stockdale v. Hansard Freedom of speech and debates and modern communications • Old law: Stockdale v. Hansard – legislation required to enable publication outside of Parliament. • Parliamentary Papers Act 1840 – publish papers under the authority of the House provided absolute privilege. (Adopted in various forms throughout Australia and New Zealand. )

Freedom of speech and debates and modern communications • Question – does the law Freedom of speech and debates and modern communications • Question – does the law in your jurisdiction expressly (or by use of definition) extend to publication of electronic papers? • Question – does the law in your jurisdiction expressly extend to broadcast of parliamentary proceedings?

Freedom of speech and debates and modern communications See for example: • Cmwth – Freedom of speech and debates and modern communications See for example: • Cmwth – s. 15 Parliamentary Proceedings Broadcasting Act 1946 – (No action or proceeding for broadcasting or re-broadcasting any portion of the proceedings of either House. ) • Victoria – s. 74 AA Constitution Act 1975 – (No action for transmission and broadcasting of Parliamentary proceedings. )

Freedom of speech and debates and modern communications • Queensland – Parliament of Queensland Freedom of speech and debates and modern communications • Queensland – Parliament of Queensland Act 2001 – (Amended in 2003, now absolute privilege for authorised publication of proceedings. ) • UK – formerly extended protection of Parliamentary Papers Act 1840 to broadcast by wireless telegraphy in Defamation Act 1952. (This Act was repealed in 1996. Unknown where extended protection now sourced. )

Freedom of speech and debates and modern communications • Implications if no extended protection: Freedom of speech and debates and modern communications • Implications if no extended protection: – At common law qualified protection. In Wason v Wa. Iter [1868 -69] 4 QB 73, held that the publisher of a parliamentary debate was protected from actions for defamation if the whole of the debate was published, and enjoyed qualified privilege for the publication of extracts from debates. – Decision not based on parliamentary privilege or on the 1840 Act, but on the principle that the publication of the proceedings of Parliament should be protected on the same footing as those of courts of justice.

Freedom of speech and debates and modern communications • Two grounds justify the rationale Freedom of speech and debates and modern communications • Two grounds justify the rationale for Wason v Wa. Iter 1. That the publication of reports of the proceedings in the parliament for the information of the public, and for the benefit of society, rebutted the presumption of malice. 2. That the advantage to the community from publicity being given to the proceedings of Parliament is so great, that the occasional inconvenience to individuals arising from it must yield to the general good.

Freedom of speech and debates and modern communications • So does it matter? • Freedom of speech and debates and modern communications • So does it matter? • Practically, probably not. • Qualified privilege would at a minimum apply at common law. • Generally have to establish malice to defeat qualified privilege at common law • Difficult to prove malice in normal circumstances.

Freedom of speech and debates and modern communications BUT …. . Freedom of speech and debates and modern communications BUT …. .

Freedom of speech and debates and modern communications • Despite the best statutory protection Freedom of speech and debates and modern communications • Despite the best statutory protection in our own jurisdiction, we may now have to be concerned about the level of protection afforded to parliamentary privilege in other jurisdictions.

Freedom of speech and debates and modern communications Dow Jones & Company Inc. v Freedom of speech and debates and modern communications Dow Jones & Company Inc. v Gutnick [2002] HCA 56: – Article in Barron publication, on servers in New Jersey and New York, critical of (defame) Gutnick – Principal issue: where was the material of which Mr Gutnick complained published? – Could he sue in an Australian jurisdiction and what law was applicable? – Was it published (and the tort of defamation committed) in Victoria where downloaded, or New York where the server was located?

Freedom of speech and debates and modern communications • Rejected United States approach to Freedom of speech and debates and modern communications • Rejected United States approach to Internet publication – that is a single publication when the material was uploaded to the Internet. • Held that multiple publications and, therefore, multiple actions possible because each download could be the cause of action in the jurisdiction where the material was downloaded. • The law of the jurisdiction where downloaded was also the applicable law.

Freedom of speech and debates and modern communications Callinan J: • “The most important Freedom of speech and debates and modern communications Callinan J: • “The most important event so far as defamation is concerned is the infliction of the damage, and that occurs at the place (or the places) where the defamation is comprehended. Statements made on the Internet are neither more nor less "localized" than statements made in any other media or by other processes. ”

Freedom of speech and debates and modern communications Callinan J: • “The appellant's submission Freedom of speech and debates and modern communications Callinan J: • “The appellant's submission that publication occurs, or should henceforth be held to occur relevantly at one place, the place where the matter is provided, or first published, cannot withstand any reasonable test of certainty and fairness. If it were accepted, publishers would be free to manipulate the uploading and location of data so as to insulate themselves from liability in Australia, or elsewhere: for example, by using a web server in a "defamation free jurisdiction" or, one in which the defamation laws are tilted decidedly towards defendants. ”

Freedom of speech and debates and modern communications Kirby J: • “… the Internet Freedom of speech and debates and modern communications Kirby J: • “… the Internet is global. As such, it knows no geographic boundaries. Its basic lack of locality suggests the need for a formulation of new legal rules to address the absence of congruence between cyberspace and the boundaries and laws of any given jurisdiction”

Freedom of speech and debates and modern communications Kirby J acknowledged issues: “The notion Freedom of speech and debates and modern communications Kirby J acknowledged issues: “The notion that those who publish defamatory material on the Internet are answerable before the courts of any nation where the damage to reputation has occurred, such as in the jurisdiction where the complaining party resides, presents difficulties: technological, legal and practical. It is true that the law of Australia provides protections against some of those difficulties which, in appropriate cases, will obviate or diminish the inconvenience of distant liability. Moreover, the spectre of "global" liability should not be exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture. ”

Freedom of speech and debates and modern communications At least Kirby J was inviting Freedom of speech and debates and modern communications At least Kirby J was inviting a legislative response: • “However, such results are still less than wholly satisfactory. They appear to warrant national legislative attention and to require international discussion in a forum as global as the Internet itself. ” • “In default of local legislation and international agreement, there are limits on the extent to which national courts can provide radical solutions that would oblige a major overhaul of longstanding legal doctrine in the field of defamation law. Where large changes to settled law are involved, in an area as sensitive as the law of defamation, it should cause no surprise when the courts decline the invitation to solve problems that others, in a much better position to devise solutions, have neglected to repair. ”

Freedom of speech and debates and modern communications • Implications for Parliamentary privilege – Freedom of speech and debates and modern communications • Implications for Parliamentary privilege – publication of parliamentary documents and broadcasts over the Internet? • Essentially, publication can occur and causes of action can arise in any jurisdiction where it is downloaded. • Thus, publication of Queensland Hansard, accessed (downloaded in Tasmania) – any defamation occurs in Tasmania.

Freedom of speech and debates and modern communications • Furthermore, the law to be Freedom of speech and debates and modern communications • Furthermore, the law to be applied would be the law of the jurisdiction where the defamation occurred – Tasmania. • Result: potentially the law of privilege in each jurisdiction becomes important to all jurisdictions. • For example, the broadcast of parliamentary proceedings may be absolutely privileged in Queensland but only have qualified privilege in Tasmania.

Freedom of speech and debates and modern communications • However, in Baffsky v. John Freedom of speech and debates and modern communications • However, in Baffsky v. John Fairfax and Sons (1991) 106 FLR 21, in an action in the ACT Supreme Court for defamation in respect of a report tabled in the New South Wales Parliament, the court held that the qualified privilege in New South Wales should be afforded the report in other jurisdictions. This may not now be the applicable law.

Freedom of speech and debates and modern communications • Practically, does it matter? • Freedom of speech and debates and modern communications • Practically, does it matter? • In most cases no, because in most jurisdictions at a minimum qualified privilege will be available – and this is likely to be sufficient as far as authorised publications of papers and broadcast where likelihood of establish malice is low • Unless the jurisdiction where the tort occurs has modified by statute law the risk is low • Courts likely to be sympathetic to stop forum shopping

Freedom of speech and debates and modern communications QUESTIONS? Freedom of speech and debates and modern communications QUESTIONS?

Erglis v. Buckely and Others [2004] QCA 223 • Issue in media and Parliament Erglis v. Buckely and Others [2004] QCA 223 • Issue in media and Parliament about hospital resources and Ward 9 D of the Royal Brisbane Hospital • Claims and counter claims over resources and risks to patients etc. • 11 Queensland Health employees sign letter critical (defamatory? ) of Ms Erglis a nurse at Ward 9 D and informant as to alleged problems at Ward.

Erglis v. Buckely and Others • Letter addressed to the Minister and passed on Erglis v. Buckely and Others • Letter addressed to the Minister and passed on to the Minister, but a copy of it before it was tabled spent time on a notice board at the hospital. • Minister receives letter, makes Ministerial Statement in the House and tables the letter in the House. • Erglis commences defamation action against 11 signatories and Queensland Health as their employer.

Erglis v. Buckely and Others • Supreme Court Trial Judge makes a ruling that Erglis v. Buckely and Others • Supreme Court Trial Judge makes a ruling that in determining damages regard cannot be made to ultimate wider publication of the document as a result of its being read out and tabled in the Parliament by the Minister as to do so would to be an impeachment of the proceedings of the Legislative Assembly.

Erglis v. Buckely and Others The trial judge held that the pleadings by seeking Erglis v. Buckely and Others The trial judge held that the pleadings by seeking to claim the publication in the House exacerbated the damages to the plaintiff’s reputation was seeking to prove inferences that reflect upon the Ministers conduct and impeach proceedings.

Erglis v. Buckely and Others Trial judge: • “A Member must not be inhibited Erglis v. Buckely and Others Trial judge: • “A Member must not be inhibited from speaking freely in the Assembly and taking part in proceedings in the Assembly because of the risk that such conduct may result in an increased award of damages against another”

Erglis v. Buckely and Others • On appeal, 2 to 1, the appeal was Erglis v. Buckely and Others • On appeal, 2 to 1, the appeal was upheld. • Thus, the exacerbated damage to the plaintiff’s reputation caused by the publication in the Assembly and as a result into the wider community could be taken into account.

Erglis v. Buckely and Others • Dissenting Judge (Jerrard JA) largely took the approach Erglis v. Buckely and Others • Dissenting Judge (Jerrard JA) largely took the approach of the trial judge. • Jerrard JA carefully considered the pleadings and found that what they were really doing was to impute improper motives and mala fides in the Minister’s conduct in the Assembly even though the actual action was against a third party.

Erglis v. Buckely and Others • Jerrard JA also emphasised the potential negative consequences Erglis v. Buckely and Others • Jerrard JA also emphasised the potential negative consequences of the majority’s decision, namely it would deter matters being raised in the House for fear that it will increase awards of damages.

Erglis v. Buckely and Others • Majority – Mc. Pherson JA stated it was Erglis v. Buckely and Others • Majority – Mc. Pherson JA stated it was clear that there was no claim against the Minister for her actions in the Assembly, but merely trying to recover more damages from the defendants for the foreseeable consequences of giving the letter to the Minister with the intention it be tabled and thus circulated widely.

Erglis v. Buckely and Others • Disturbingly, Mc. Pherson JA considered that all the Erglis v. Buckely and Others • Disturbingly, Mc. Pherson JA considered that all the plaintiff was seeking to do was lead evidence that the letter had been read and tabled in the House as “historical fact” (and in this context referred to Buchanan v. Jennings [2002] 3 NZLR 145

Erglis v. Buckely and Others • The other majority judge, Fryberg J did not Erglis v. Buckely and Others • The other majority judge, Fryberg J did not think that there was any allegation that the Minister’s action in the House caused the damage but merely assisted them to become known to the public at large and that the defendants intended that this would happen. • He emphasised that no damages were sought in respect of the Ministers actions in the House per se, but that damages were exacerbated by the subsequent republication in the public domain.

Erglis v. Buckely and Others • Unsatisfactory judgement • Clearly inconsistent with rationale expressed Erglis v. Buckely and Others • Unsatisfactory judgement • Clearly inconsistent with rationale expressed in cases such as Rowley v. O’Chee [2000] 1 Qd R 207 where the “chilling effect” in deterring Members and witnesses from participating in proceedings was emphasised. • Submitted that trial judge and minority position clearly correct.

Erglis v. Buckely and Others • No appeal • Subsequently plaintiff succeeded via one Erglis v. Buckely and Others • No appeal • Subsequently plaintiff succeeded via one defendant for $12, 000 QUESTIONS?

Emerging issue - Freedom of Information and Parliamentary Proceedings • FOI exemptions (act not Emerging issue - Freedom of Information and Parliamentary Proceedings • FOI exemptions (act not apply to Parliament, Committees, Members and Parliamentary Service) also exemption if “infringe the privileges of Parliament” • However, FOI requests made to government agencies that correspond with or report to committees or that respond to members correspondence etc.

Freedom of Information and Parliamentary Proceedings Issues arisen: • FOI Commissioner seeking access to Freedom of Information and Parliamentary Proceedings Issues arisen: • FOI Commissioner seeking access to documents prepared for committee by agency, not authorised for release. Despite certificate issued that documents were prepared for the committee, the commissioner wanted to view the documents.

Freedom of Information and Parliamentary Proceedings • Documents prepared for Ministers or departments for Freedom of Information and Parliamentary Proceedings • Documents prepared for Ministers or departments for estimates committee appearances, or possible parliamentary questions (PPQ) being sought under FOI, FOI exemption “infringe the privileges of parliament” being applied on the basis of the rationale in Rowley v. O’Chee [2000] 1 Qd R 207 (“chilling effect”), despite never used or committee ever seeing • Confusion between “proceeding in parliament” and “infringe the privileges of parliament”?

Modern judicial attitudes to parliamentary privilege – lessons for the future. • Clearly a Modern judicial attitudes to parliamentary privilege – lessons for the future. • Clearly a sea change of attitude. • Individual rights of persons (including the right to damages for loss of reputation) are being seen as more important in balancing against the public interest in preserving parliament’s privileges. • Some surprisingly strong decisions in recent years, such as Rowley v. O’Chee [2000] 1 Qd R 207, where courts have defended privilege in circumstances where member or constituent needed protection. • The fiction of use for historical purposes is a concern.