Libel – and Privilege
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From: Styx Houseboat Park.
Libel – and Privilege
Unabashed ignorance and vagrant curiosity prompts the post; probably brought on by Pprune reading. 
In a nutshell – how far can 'professional privilege' be pushed. I mean – if say you 'published' a professional opinion (assuming a professional background); where is the fine line drawn ?.
The 'Kalgoorlie rules'; y' pays ya money and takes ya chances, whilst eloquent in their simplicity, don't seem to quite cut it today. How far can you reasonably take it out, without being in dire straits??.
Genuine, sincere question for our esteemed legal colleagues. Yours fascinated.
In a nutshell – how far can 'professional privilege' be pushed. I mean – if say you 'published' a professional opinion (assuming a professional background); where is the fine line drawn ?.
The 'Kalgoorlie rules'; y' pays ya money and takes ya chances, whilst eloquent in their simplicity, don't seem to quite cut it today. How far can you reasonably take it out, without being in dire straits??.
Genuine, sincere question for our esteemed legal colleagues. Yours fascinated.
Joined: May 2000
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From: Australia
Kharon,
I'm not a legal eagle either and I also had my curiousity peeked by some of the posts in another thread, and so I posted a link to a legal website on Defamation/ Libel Laws in Australian Electronic media.
You might find the information is useful.
Australian Defamation Laws and the Internet
The fact that the truth isn't always a defence was an eye opener to me.
How this relates to a professional opinion or professional priveledge, I have no idea.
Seaeagle109
"A Man's character is his fate", Heroclitus, 535-475 BC
I'm not a legal eagle either and I also had my curiousity peeked by some of the posts in another thread, and so I posted a link to a legal website on Defamation/ Libel Laws in Australian Electronic media.
You might find the information is useful.
Australian Defamation Laws and the Internet
The fact that the truth isn't always a defence was an eye opener to me.
How this relates to a professional opinion or professional priveledge, I have no idea.
Seaeagle109
"A Man's character is his fate", Heroclitus, 535-475 BC
Dunnunda Fleet Manager
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From: Utopia
If you are talking posts made on PPRuNe, this site is "published" in the State of California where the legal system provides for:
And:
Forget about fairness and the rules of libel and defamation. It is not necessary for a plaintiff to prove libel or defamation in order to obtain the IP address and any other information held by the publisher of a web site such as PPRuNe. In general, there is no defence to a SLAPP Subpoena.
PPRuNe has received a number of SLAPP Subpoenas in recent times. One airline in particular does not wish to be discussed in what it perceives are derogatory terms. A SLAPP Subpoena may request and obtain the identities of many users who have posted on PPRuNe (I think one SLAPP Subpoena sought details on 40 plus posts) and many of those posts may be totally innocent and mundane.
Be very careful before you press the "Submit Reply" button!
And don't admonish Mods for deleting posts and threads when Mods are probably aware of other considerations and delete posts or threads in order to protect you, our registered users.
A Doe subpoena is a subpoena that seeks the identity of an unknown defendant to a lawsuit. Most jurisdictions permit a plaintiff who does not yet know a defendant's identity to file suit against John Doe and then use the tools of the discovery process to seek the defendant's true name. A Doe subpoena is often served on an online service provider or ISP for the purpose of identifying the author of an anonymous post.
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.
The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat.
PPRuNe has received a number of SLAPP Subpoenas in recent times. One airline in particular does not wish to be discussed in what it perceives are derogatory terms. A SLAPP Subpoena may request and obtain the identities of many users who have posted on PPRuNe (I think one SLAPP Subpoena sought details on 40 plus posts) and many of those posts may be totally innocent and mundane.
Be very careful before you press the "Submit Reply" button!
And don't admonish Mods for deleting posts and threads when Mods are probably aware of other considerations and delete posts or threads in order to protect you, our registered users.
Thread Starter
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From: Styx Houseboat Park.
Cheers TW
Thanks - No, not intending to push any great big buttons, as stated; vagrant curiosity was all.
Thing that kicked it off was a yarn I heard (in the Pub) in which the "Bad sayer" could not be got at by the "Call ee". Seems there is a 'thing' professional privilage (I think ?) that allows for professional opinion to be a defence. Could be all rubbish, But always happy to head good advice.
It's a murky old world though, ain't it.
.
Thing that kicked it off was a yarn I heard (in the Pub) in which the "Bad sayer" could not be got at by the "Call ee". Seems there is a 'thing' professional privilage (I think ?) that allows for professional opinion to be a defence. Could be all rubbish, But always happy to head good advice.
It's a murky old world though, ain't it..
Last edited by Kharon; 15th April 2012 at 03:50. Reason: Bloody american spelling.
Dunnunda Fleet Manager
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From: Utopia
It's a murky old world though, ain't it.
Thread Starter
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From: Styx Houseboat Park.
Day made.
CP – Efharisto poli. (Greek Easter and all).
There are some clever, clever folk in this world. I have always loved to watch a 'pro' doing what they do best, and these lads are good. I don't mean smart, I mean “good” in the true sense of the word; reasonable and reasoned, fascinating stuff. The following links are recommended; great for reading over quiet coffee or ale. Qualified privilege
Fair comment
Could not resist this – it's on my list for a little more reading.
Yup, that's what I call interesting. . The Bar Barristers club will loose some beers now. Probably end up in a punch up.
There are some clever, clever folk in this world. I have always loved to watch a 'pro' doing what they do best, and these lads are good. I don't mean smart, I mean “good” in the true sense of the word; reasonable and reasoned, fascinating stuff. The following links are recommended; great for reading over quiet coffee or ale. Qualified privilege
Fair comment
Could not resist this – it's on my list for a little more reading.
Fair comment
Lord Birkett said in 1951 - 'It is the right of every man to comment freely, fairly and honestly on any matter of public interest.' This principle means it is not defamatory when words are an expression of opinion and not a statement of fact. It may be difficult to determine if words are statements of facts or expressions of opinion. Words must be construed in their context and in some circumstances words that would otherwise be statements of fact might be viewed as comments.
The opinion, however, must be fair and based upon facts which the defendant can identify and prove to be true. It must also be honestly held and not motivated by malice (some improper or dishonest motive). Personal ill will by the defendant towards the plaintiff is an example of malice.
'Public interest' is a wide concept involving what is a legitimate concern to the public. Instances include the conduct of people holding public office, the conduct of a political party, the conduct of a clergyman and artistic works such as plays and books. It extends as far as the criticism of a restaurant's food in a newspaper review.
The Defamation Act 2005 s.29 provides a defence of honest opinion where the expression of opinion is related to a matter of public interest and based on ‘proper material’ that is substantially true or based on privileged material.
Lord Birkett said in 1951 - 'It is the right of every man to comment freely, fairly and honestly on any matter of public interest.' This principle means it is not defamatory when words are an expression of opinion and not a statement of fact. It may be difficult to determine if words are statements of facts or expressions of opinion. Words must be construed in their context and in some circumstances words that would otherwise be statements of fact might be viewed as comments.
The opinion, however, must be fair and based upon facts which the defendant can identify and prove to be true. It must also be honestly held and not motivated by malice (some improper or dishonest motive). Personal ill will by the defendant towards the plaintiff is an example of malice.
'Public interest' is a wide concept involving what is a legitimate concern to the public. Instances include the conduct of people holding public office, the conduct of a political party, the conduct of a clergyman and artistic works such as plays and books. It extends as far as the criticism of a restaurant's food in a newspaper review.
The Defamation Act 2005 s.29 provides a defence of honest opinion where the expression of opinion is related to a matter of public interest and based on ‘proper material’ that is substantially true or based on privileged material.
. The Bar Barristers club will loose some beers now. Probably end up in a punch up.
Last edited by Kharon; 15th April 2012 at 10:04. Reason: Can't yype fo shoot
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From: Australia
At the end of the day Defamation ( Libel ) is the devils work, nothing good comes from a Defo action.
Likewise nothing good comes from pursuing Defo.
Reasoned people stand toe to toe and debate out their issues, Defo is only for those who simply lack the intestinal fortitude to confront their demons and work the problem out.
Likewise nothing good comes from pursuing Defo.
Reasoned people stand toe to toe and debate out their issues, Defo is only for those who simply lack the intestinal fortitude to confront their demons and work the problem out.
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From: Go west young man
'Public interest' is a wide concept involving what is a legitimate concern to the public. Instances include the conduct of people holding public office, the conduct of a political party, the conduct of a clergyman and artistic works such as plays and books. It extends as far as the criticism of a restaurant's food in a newspaper review.
The Defamation Act 2005 s.29 provides a defence of honest opinion where the expression of opinion is related to a matter of public interest and based on ‘proper material’ that is substantially true or based on privileged material.
The Defamation Act 2005 s.29 provides a defence of honest opinion where the expression of opinion is related to a matter of public interest and based on ‘proper material’ that is substantially true or based on privileged material.
Sadly the 'Public Interest' factor also seems to have been blurred and lost in the mist over the last thirty to forty years, maybe that is why in 'today's world' we need a Wikileaks etc to 'keep the bastards honest'!
It is also interesting to note how the "model litigators" all profess to adhere to the principle of the 'Public Interest' in their publically available fluffy (K's phrase that is apt) documentation/governances (see CDPP example here:http://www.cdpp.gov.au/Publications/...tionPolicy.pdf ), yet when it comes to practise they all go into damage control, or ego mania, or "it wasn't me officer", or (like MT in another thread) bury their head in the sand!
Hey Mick T this is for you mate, from Sophocles god bless his soul:
"The kind of man who always thinks that he is right, that his opinions, his pronouncements, are the final word, when once exposed shows nothing there. But a wise man has much to learn without a loss of dignity."
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From: Alabama, then Wyoming, then Idaho and now staying with Kharon on Styx houseboat
Is it still libel if you don't name a particular person by his/her true name but instead one uses a nickname that alludes to a particular person but doesn't directly name them?
And for example what about an organization or a structure as a whole? For example rather than name a particular politician or even a particular party one might say something like 'Australian governments are all complete !!!!e and the corridors are filled with politicians who are as useless as a lump of camel !!!!e'. Is this still potentially a case of libel?
As for prune being a Californian entity I think that is very cool. It explains Tailwheels strong accent and southern tan !!!
And for example what about an organization or a structure as a whole? For example rather than name a particular politician or even a particular party one might say something like 'Australian governments are all complete !!!!e and the corridors are filled with politicians who are as useless as a lump of camel !!!!e'. Is this still potentially a case of libel?
As for prune being a Californian entity I think that is very cool. It explains Tailwheels strong accent and southern tan !!!
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From: Victoria
Tailwheelsaid that this site is published in the State of California and discussed the prickly problem that are SLAPP writs.
Please be assured that this site is also published in Australia and writs can be issued here, too. Just ask Joe Gutnik!
In his case, the High Court held that the act of publishing occurs at the place where the site is "opened" ie where it is accessed by the viewer. Even though the website was managed in New York and the material was loaded on it there, it was opened and read by subscribers in Australia and Joe's reputatin was consequently diminished by the words said about him.
Kaz
Please be assured that this site is also published in Australia and writs can be issued here, too. Just ask Joe Gutnik!
In his case, the High Court held that the act of publishing occurs at the place where the site is "opened" ie where it is accessed by the viewer. Even though the website was managed in New York and the material was loaded on it there, it was opened and read by subscribers in Australia and Joe's reputatin was consequently diminished by the words said about him.
Kaz
Joined: Jun 2004
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From: Surrounding the localizer
The trick at avoiding any legal action as was described to me by a fellow who should know...
Establish an online persona via a public IP address, preferably somewhere that offers free wifi (airports and coffe shops are ideal), secondly use a secure VPN connection based in an Internet friendly jurisdiction (did someone mention Sweden?), ensure that if your publically accessible IP location is indeed public, be sure there is no actual physical or electronic trace of you at this location i.e. pay cash, cell phone off, hat, dark glasses etc etc...
Lastly, be unpredictable in your movements.
If they find you after those efforts, then they are likely to be the NSA or some other well resourced security service....in which case mayby you should have known better
Establish an online persona via a public IP address, preferably somewhere that offers free wifi (airports and coffe shops are ideal), secondly use a secure VPN connection based in an Internet friendly jurisdiction (did someone mention Sweden?), ensure that if your publically accessible IP location is indeed public, be sure there is no actual physical or electronic trace of you at this location i.e. pay cash, cell phone off, hat, dark glasses etc etc...
Lastly, be unpredictable in your movements.
If they find you after those efforts, then they are likely to be the NSA or some other well resourced security service....in which case mayby you should have known better
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From: Cape Town / UK / Europe
More than 35 years ago, I was threatened with legal action and R15000 (at the time, a fortune, about three years salary!) was demanded from me by the lawyers of the GM of the company I worked for, because I had written to the Chairman of the company in its home country exposing him as a liar, cheat, fraud, and thief.
I still remember going to my Cape Town PO Box on a sunny Sunday afternoon on the way back from the beach, and collecting my mail, amongst which was this letter from a firm of shyster lawyers in Johannesburg. I felt as if my wolrd had ended. I wish I could find the letter and no doubt have it somewhere.
Fortunately I had a lawyer friend and after a sleepless night was in his office the next morning. He told me that although it was foolish to have done what I did, if I had documentary evidence of his fraudulent acts against the company, and thius could prove my contentions to be true, I had little to fear. I did, and nothing further happened.
I still remember going to my Cape Town PO Box on a sunny Sunday afternoon on the way back from the beach, and collecting my mail, amongst which was this letter from a firm of shyster lawyers in Johannesburg. I felt as if my wolrd had ended. I wish I could find the letter and no doubt have it somewhere.
Fortunately I had a lawyer friend and after a sleepless night was in his office the next morning. He told me that although it was foolish to have done what I did, if I had documentary evidence of his fraudulent acts against the company, and thius could prove my contentions to be true, I had little to fear. I did, and nothing further happened.
Dunnunda Fleet Manager
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From: Utopia
Worrals, a contentious issue and the cause of much angst in our Admin Forum. 
The site publishers now advise the Mods when a subpoena is received but the requested details are still provided by return.
A subpoena was received by the publishers late last year resulting in around 40 user details being provided, including the details of a Mod. The Mods were not advised until after the event which led to some rather terse confrontations.
In the instances of SLAPP Subpoenas that have occurred, the aim has been to harrass and intimidate PPRuNe users rather than initiate defamation action. The airline initiated the subpoena was probably looking for it's "disloyal" staff and anyone else it could intimidate.
haughtney1. What you suggest may be possible, but rather improbable. You could access PPRuNe via a free Proxy Server in another country - e.g. Hide my Ass or one of hundreds of others in different countries - but I don't know how secure they are considering they also probably record your home IP address.
Then there is your profile email address and a determined litigant could also seek IP details and email contents from your email service provider. With an IP address, a subpoena to, for example, social networking sites for IP matching and *bingo* - your identity, personal details, possibly employer, known friends etc, all laid bare. Social networking sites are potentially very dangerous, as many have already discovered.
The internet is not some great big annonymous party. A few dollars and a little determination and it is relatively simple to trace individuals.
The site publishers now advise the Mods when a subpoena is received but the requested details are still provided by return.
A subpoena was received by the publishers late last year resulting in around 40 user details being provided, including the details of a Mod. The Mods were not advised until after the event which led to some rather terse confrontations.
In the instances of SLAPP Subpoenas that have occurred, the aim has been to harrass and intimidate PPRuNe users rather than initiate defamation action. The airline initiated the subpoena was probably looking for it's "disloyal" staff and anyone else it could intimidate.
haughtney1. What you suggest may be possible, but rather improbable. You could access PPRuNe via a free Proxy Server in another country - e.g. Hide my Ass or one of hundreds of others in different countries - but I don't know how secure they are considering they also probably record your home IP address.
Then there is your profile email address and a determined litigant could also seek IP details and email contents from your email service provider. With an IP address, a subpoena to, for example, social networking sites for IP matching and *bingo* - your identity, personal details, possibly employer, known friends etc, all laid bare. Social networking sites are potentially very dangerous, as many have already discovered.
The internet is not some great big annonymous party. A few dollars and a little determination and it is relatively simple to trace individuals.
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From: Sunny side up
Okay, thanks.
One would assume that the intent of such subpoenas was to investigate possible breaches of defamation law or track down cyber stalkers et al, not 'harass and intimidate' people with an opinion. Oh well, I suppose if we all got a dollar every time laws were used for purposes other than what was intended, we'd be too rich to hang around here.
That said, publically criticising a current employer has always been an extreme sport, whether the criticism is expressed at the pub or online.
Was the subpoena in relation to DG&P content, or another sub forum? Did anything nasty come of it?
One would assume that the intent of such subpoenas was to investigate possible breaches of defamation law or track down cyber stalkers et al, not 'harass and intimidate' people with an opinion. Oh well, I suppose if we all got a dollar every time laws were used for purposes other than what was intended, we'd be too rich to hang around here.
That said, publically criticising a current employer has always been an extreme sport, whether the criticism is expressed at the pub or online.
Was the subpoena in relation to DG&P content, or another sub forum? Did anything nasty come of it?
Dunnunda Fleet Manager
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From: Utopia
I posted above:
In the instances I am aware of involving PPRuNe I don't think there was ever any intention of defamation action.
I believe the site publishers may have advised the affected PPRuNe users but I never had that confirmed. They certainly advised the affected Mod. I don't know the outcomes but assume loss of employment may have occurred.
The action did not directly involve D&G Forums but did involve some Australians.
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
I believe the site publishers may have advised the affected PPRuNe users but I never had that confirmed. They certainly advised the affected Mod. I don't know the outcomes but assume loss of employment may have occurred.
The action did not directly involve D&G Forums but did involve some Australians.
Thread Starter
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From: Styx Houseboat Park.
Bugga
Heigh Ho – I had a frisson of escape there, for a while to enjoy an academic piece, it was fun ( CP). Then back to the grim reality of the world we live in. I enjoy both so no complaints or disagreement with the pragmatists.
Whip up them horses Minnie - back to the salt mines.
CP). Then back to the grim reality of the world we live in. I enjoy both so no complaints or disagreement with the pragmatists.
T28 - Reasoned people stand toe to toe and debate out their issues, Defo is only for those who simply lack the intestinal fortitude to confront their demons and work the problem out.
WiW - Oh well, I suppose if we all got a dollar every time laws were used for purposes other than what was intended, we'd be too rich to hang around here.
TW - In the instances I am aware of involving PPRuNe I don't think there was ever any intention of defamation action.
Oh what a tangled web we weave,
When first we practise to deceive!
Sir Walter Scott, Marmion, Canto vi. Stanza 17.
When first we practise to deceive!
Sir Walter Scott, Marmion, Canto vi. Stanza 17.