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Abstract:
The concept of reputation in defamation law has not been the subject of detailed academic analysis. The most comprehensive account of reputation in defamation law remains Robert C. Post's seminal article, 'The Social Foundations of Defamation Law: Reputation and the Constitution' (1986) 74 California Law Review 691. Post identifies at least three concepts of reputation in defamation law: reputation as property; reputation as honor; and reputation as dignity. This article seeks to apply Post's concepts of reputation to Australian defamation law. Through a case-study of two recent defamation cases, the high-profile litigation of Ettingshausen v Australian Consolidated Press and the comparatively little known case of Shepherd v. Walsh [2001] QSC 358, this article explores the concept of reputation in Australian defamation law. Although these two cases bear important similarities - both involve plaintiffs suing in respect of the publication of naked photographs they claimed exposed them to ridicule - the differences are more striking. This article argues that reputation can be understood as an economic and a social construct but should also be recognized as a media construct - reputation as celebrity.

Tort, Defamation, Reputation, Celebrity, Nudity, Photography, Ridicule, Australia

Abstract:
One feature of the national, uniform defamation laws, which came into force across Australia in 2006, was that truth alone became a defence to defamation. Prior to their introduction, the defence of justification in four Australian jurisdictions required not only proof of substantial truth but also satisfaction of an element of public interest or benefit. Following the reforms, there was public debate about whether the removal of the element of public interest or benefit from the defence of justification would have the effect of allowing the media to invade privacy with greater impunity than previously. This article examines the public debate on this issue. It argues that more invasive media practices cannot be attributed solely or substantially to the removal of the element of public interest or benefit from the defence of justification. It further contends that, given that reputation and privacy are conceptually distinct interests, it is inappropriate to use defamation law, which seeks to protect reputation, as an indirect means to protect privacy. The article then notes recent attempts in Australia to develop a direct form of privacy protection.

Defamation, Australia, New South Wales, National, uniform defamation laws, Truth, Justification, Defences, Public interest, Public benefit, Privacy, Reputation, Law reform

Abstract:
Work-related psychiatric harm is an increasing problem in the contemporary workplace. It poses significant legal and regulatory challenges, potentially involving the intersection of employment law, negligence and contract as well as systems of occupational health and safety and workers' compensation. This article examines the recent High Court decision in Koehler v Cerebos (Aust.) Ltd (2005) 214 ALR 355; (2005) 79 ALJR 845, which considered whether an employer owes a duty of care not to inflict psychiatric harm on an employee in circumstances where the harm results from the employee's undertaking of a workload in excess of industry standards. It analyses the reasoning of the High Court and places the case in the context of earlier Australian authorities not directly considered by the High Court and contrasts it to the emerging position in the United Kingdom.

Torts, Negligence, Psychiatric harm, Duty of care, Workplace stress, Employer-employee relations, Australia, Comparison with United Kingdom, Interaction of tort and contract

Abstract:
The national, uniform defamation laws, which came into effect across Australia in 2006, represent the most significant landmark in the history of Australian defamation law. They represent the culmination of four decades of fitful struggle toward reform and reduce eight, substantively different systems of State and Territory defamation laws to one, largely uniform statute. This article undertakes a comprehensive analysis of the substantive and procedural changes brought about by the introduction of the national, uniform defamation laws. It assesses the uniformity of the legislation as passed. It examines the introduction of a statutory choice of law rule specific to defamation; the reduction in limitation periods for defamation actions; the abolition of the distinction between libel and slander; and the further marginalisation of criminal defamation. The article canvasses the significant changes made to standing to sue by corporations and representatives of deceased persons and the respective roles of judge and jury in defamation trials. It also analyses the reforms to defences to, and remedies for, defamation. It concludes by evaluating the efficacy of the national, uniform defamation laws and by suggesting scope for future reforms.

Defamation, Media law, Law reform, Australia, Choice of law, Tort, Renvoi, Limitation periods, Libel, Slander, Criminal defamation, Standing to sue, Corporations, Defamation of the dead, Defamatory matter, Imputations, Juries, Defences, Justification, Remedies

Abstract:
The employee-independent contractor distinction is crucial to the imposition of vicarious liability on employers. The most recent consideration of this issue by the High Court of Australia in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161. In this case, the High Court of Australia considered the concept of 'representative agent' as a basis for imposing vicarious liability for negligence. It also demonstrates limits on the extent to which courts will consider changing socio-economic and workplace realities. This article argues that, rather than introducing a third category of 'representative agent', perhaps a more fundamental reconsideration of the employee-independent contractor distinction should be undertaken.

Negligence, Personal injuries, Vicarious liability, Employees, Independent contractors, Australia, Representative agent, Workplace relations

Abstract:
The challenges posed by internet defamation have been the subject of few decisions by ultimate appellate courts. One of the few, and the first, was the High Court of Australia's decision in Dow Jones & Co. Inc. v Gutnick (2002) 210 CLR 575. This article canvasses the issues central to the appeal: the meaning of the term, 'publication', in defamation law; the place of publication; the power to exercise jurisdiction over a matter and the discretionary non-exercise of jurisdiction; the impact of the unique characteristics of the internet and the desirability of technology-specific rules and principles; and other policy considerations surrounding this vexed area of law, such as the impact of globalisation; the need for certainty; freedom of expression; the need to give due recognition to foreign legal systems; the legitimate interests of plaintiffs and defendants; and the existing, practical solutions to problems posed by multistate defamation.

Defamation, Private international law, Internet; Publication, Jurisdiction, Forum non conveniens, Dow Jones v Gutnick, Globalisation, Freedom of expression

Abstract:
The national, uniform defamation legislation, which was introduced across Australia in 2006, effected a dramatic change in Australian defamation law. Eight, substantively different systems of defamation law - some purely common law, some codified - were replaced by a statute which was largely common and consistent throughout Australia. This article highlights some of the significant changes brought about by the introduction of the national, uniform defamation laws. It examines how uniform the new laws in fact are. It analyses the legislative restrictions on standing to sue for defamation laws on behalf of deceased persons and corporations. It also explores important procedural changes to the role of judge and jury in defamation trials and the applicable limitation period in defamation proceedings. Finally, this article analyses changes to defences and remedies for defamation.

Defamation, Torts, Media law, Australia, National, uniform defamation laws, Law reform, Standing, Corporations, Deceased persons, Limitation periods, Juries, Defences, Remedies, Damages

Abstract:
In the last decade in New South Wales, there have been a number of challenges to 'unreasonable' jury verdicts. As a consequence, the role of juries in defamation trials has recently been questioned in some quarters. This paper argues that juries themselves are not the problem. Given the centrality of the 'ordinary, reasonable reader' to defamation law, juries, embodying the 'ordinary, reasonable reader', play an important role, representing community values and understanding in defamation litigation. Rather, the complex principles and procedures which have developed around defamation law are the real problem. The solution is not the abolition of juries but the reform of defamation law and practice.

defamation, media law, juries, trials, 'ordinary, reasonable reader', Australia,New South Wales, law reform

Abstract:
The concept of reputation is the central legal interest protected by the tort of defamation but is comparatively undertheorised in defamation jurisprudence. This book contributes to the analysis of reputation. The introduction to this book examines why it is important to analyse the concept of reputation. It reviews the meanings and importantly the value ascribed to reputation by judges and academics. It also outlines the overall structure and the argument of the book.

tort, defamation, media law, reputation, celebrity

Abstract:
This article examines the recent trend in "perverse" or unreasonable jury verdicts in New South Wales defamation trials and the resulting, increased level of appellate intervention. It does so particularly in light of the High Court of Australia's decision in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; (2003) 77 ALJR 1577; (2003) Aust Torts Reports para.81-711. It canvasses the applicable test for appellate interference with a jury verdict and analyses the decisive shift away from a discourse based on "perversity" to one based on unreasonableness. It analyses the implications of Fairfax v Rivkin for future challenges to jury verdicts.

Defamation, Australia, New South Wales, Juries, Verdicts, Trials, Unreasonableness, Perversity

Abstract:
The proper test to be applied to the grant of an interlocutory injunction to restrain the publication of defamatory matter is rarely litigated at the highest appellate level. The High Court of Australia's decision in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 provided an opportunity to clarify the applicable principles and potentially to end the division of judicial and academic opinion between what has been characterised as the 'rigid' and the 'flexible' approaches to such relief. This article analyses the reasoning in A.B.C. v O’Neill. It questions whether it can be properly claimed that general equitable principles apply to the grant of injunctions in defamation cases when, in substance, the approach of the majority in A.B.C. v O'Neill appears to treat defamation as a special case. Beyond an engagement with the principles governing injunctive relief in defamation cases, this article argues that A.B.C. v O'Neill raises further, difficult issues of principle, such as the value to be ascribed to freedom of speech; the meaning of ‘trial by media’; the role of reputation in defamation law; and the emerging tension between injunctions to restrain the publication of defamatory matter and invasions of privacy.

tort, defamation, Australia, interlocutory injunctions, equitable principles, public interest, public benefit, freedom of speech, prior restraint, trial by media, reputation, privacy