Legal system

| June 19, 2015

Legal system

Facts:

It is a month since Sam Badenpowell published his article on Female’s Fortnightly and Tom Tattletale is still really angry at him.  While Sam completely misinterpreted what Tom said to him, Tom still wonders what would happened to his reputation if Sam names Tom as his source in Larry Leisure-Suit’s upcoming defamation trial against Sam.  Tom read in the newspaper that Larry had issued his statement of claim, and the trial was due to start on Monday (two days away), so Tom does not have to wait long to find out.

Nevertheless, things in Tom’s personal life are going well.  He is still dating Diana Ferguson, who coincidentally happens to work at the Department of Community Wellbeing and is one of the witness for Larry.  Diana has similar interests to Tom, including a shared passion for Bette Midler films and harvesting witchetty grubs.

Tom decides to pop into the bar Clandestine for a drink.  He orders a Shirley Temple and sits down by the window.  He happens to spot Diana walking on the other side of the road.  Tom is about to get up to invite her over when he notices none other than Sam walking next to her.  Tom thinks to himself how strange this is, as he was not aware that they knew each other.  He continues to watch and to his horror sees Sam lean over and kiss Diana, then holds her hand as they walk away.

Tom is naturally livid.  Not only did Sam publish that ridiculous article, but now has stolen Tom’s girlfriend!  And as for Diana, Tom had recently bought her a 9 ct gold witchetty grub charm for her bracelet, which she happily accepted.  Tom decides to get back at Sam and Diana the only way he knows how – through words.

Tom goes straight home and writes an article about Sam and Diana’s affair.  He uploads it to his entertainment blog Observations of an Observer, which is open to public, first thing on Monday morning.  The article is titled ‘The cat that swallowed the tea – witness taking kick-backs from English Backpacker’.  The article contains the following paragraph:

Diana Ferguson, witness for the plaintiff in the upcoming defamation trial Leisure-Suit v Badenpowell, is a conniving, scheming, catty woman not fit for such a role.  The sex-crazed whore, who watches films by the Devine Miss M to get her in the mood, has been accepting bribes of sexual favours in exchange for favourable court statements from Sam Badenpowell – he himself, as untrustworthy as every other tea-totalling, cucumber sandwich eating, bad-toothed English backpacker.  Do we really want a specimen like her influencing decisions about justice?

Both Sam and Diana see the article and are very angry at Tom’s childishness.  Sam refers back to his original article ‘The cat that swallowed the cream – Public servants taking kick-backs wasting our money’ which he recalls contained the following paragraph:

The Secretary of the Department of Community Well-Being is a conniving, scheming man not fit for such a high office.  He has been accepting bribes in exchange for favourable contract results, including the coffee contract for the Department’s upcoming fun run.  Do we really want a specimen like him making decisions about our future wellbeing?

Questions:

PART 1

(1)    Has Tom breached Sam’s rights under the Copyright Act 1968 (Cth) in publishing on his blog the article ‘The cat that swallowed the tea – witness taking kick-backs from English Backpacker’?  In your answer, discuss any defences that might be available to Tom and what remedies might be available to Sam.  (10 marks)
(2)    Has Tom committed contempt of court by publishing on his blog the article ‘The cat that swallowed the tea – witness taking kick-backs from English Backpacker’?  In your answer, briefly discuss the defences that might be available to Tom and the consequences if he has been found to have committed contempt. (7 marks)
(3)    Has Tom committed an unlawful act under section 18C of the Racial Discrimination Act 1975 (Cth)?  In your answer, discuss whether any exemptions in section 18D apply. (5 marks)
(4)    Does Tom’s statement ‘The sex-crazed whore, who watches films by the Devine Miss M to get her in the mood, has been accepting bribes of sexual favours from Sam Badenpowell in exchange for favourable court outcomes’ constitute an obscene or indecent publication under the common law?  (5 marks)

PART 2

With reference to two topics we have studied this semester (eg. privacy, court reporting, breach of confidence, etc), discuss how you see legal and ethical obligations interacting, overlapping and conflicting in the work of professional communicators.  In your essay, discuss the differences between legal and ethical obligations and the impact of new media such as Facebook, Twitter, Instagram and YouTube. (10 marks)

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