March 10, 2014
One of the modern myths of American jurisprudence is the primary the Constitution has always given to the First Amendment. In that context the media has a significant, almost unassailable, defence when facing a claim of defamation from a public figure. It was not always thus. In fact pre 1964 US defamation law was not much different to that of its cousins across the lake in the UK.
It was the US Supreme Court decision of New York Times v Sullivan, 50 years ago on 9 March 1964, which elevated the First Amendment protections to its current position of primacy. That position has not been reduced, as some of the decisions of the Warren Court have been (such as the Miranda decision). If anything it has been bolstered.
The Atlantic covers the story of New York Times v Sullivan in Today Is the 50th Anniversary of the (Re-)Birth of the First Amendment. As usual a thoughtful and engrossing account of how the decision came about.
On March 9, 1964, a unanimous Supreme Court reversed a libel verdict against The New York Times in a case brought by Alabama officials who complained about a civil rights advertisement in the paper. The First Amendment, thankfully, hasn’t been the same since.
April 12, 2012
Today Justice Beach, in Barrow v McLernon & Anor  VSC 134 handed down a very interesting and useful decision regarding discovery and the operation of section 27 of the Civil Procedure Act. It is an appeal from a decision of an Associate Justice.
The Plaintiff is suing Hugh McLernon and IMF (Australia) Limited for defamation arising out of the publication on 30 May 2011 of an email and two pdf attachments . The Plaintiff wishes to use documents discovered in this proceeding in support of issuing other proceedings, also a cause of action in defamation . Five documents discovered constitute Read the rest of this entry »
November 22, 2010
The High Court sitting in the Queens Bench division recently rejected an application by the defendant, Modi, to order a trial on the extent to which the tweet the subject of the action was read in jurisdiction. The Defendant applicant argued that issue was relevant to both liabilityand damages. The High Court ruled that numbers of readers alone was not decisive.
An expert giving evidence on behalf of Modi estimated that only 35 people viewed the message. The Defendant argued that, as in Yousef Jameel and Dow Jones , the damage from any libel case would be so small as to be not warrent proceeding and so any case would be an abuse of the court process.
There was conflicting evidence as to extent of publication (see  – [ 22]). Cairns’ expert estimated the audience for the tweet to be around 100, by looking at the number of Modi’s followers in the court’s jurisdiction. While Cairn’s counsel accepted that not all of Modi’s followers would have seen the tweet directly, it was argued that some people would have received a communication of it by other means.
Decision and reasoning
Mr Justice Tugendhat found that the number of people who saw the message was only one of a number of considerations in a defamation case. He found at :
In any event, the Jameel type of abuse of process does not depend on numbers alone. [Cairns] has resided in this jurisdiction in the past, and expects to return to live here again. There have been recent cases in which the court has declined to strike out claims based on a direct communication to a single publishee.
Mr Justice Tugendhat said Read the rest of this entry »