The development of new laws for contracting with small businesses

The Australian Competition and Consumer Commission (ACCC) introduced new law in late 2016 that effected all contracts where small businesses were trading with large companies.

The aim was to protect small businesses (i.e. under 20 people) in their contractual transactions by identifying and disallowing ‘unfair’ contract terms within standard form agreements commonly insisted upon by larger companies.

ACCC has identified that unfair contractual terms will likely include:

  • Terms that force one party to automatically renew the contract.
  • Terms that allow one party to vary the terms and conditions of the contract, or increase prices, without the consent of the other party.
  • Terms that too broadly limit the liability of the large business.
  • Terms that unreasonably make a small business indemnify a large business.
  • Terms that unreasonably penalise a party for terminating the contract.

Large businesses are encouraged to review their standard form agreements to ensure they comply with the new standards. 

For a small business owner, you should seek legal advice before entering into a contract, particularly where the contract has been prepared by the other party and you have had minimal input into its terms.

No matter what size your business, if you are in doubt as to whether your agreements contain unfair terms, or consider that unfair terms are being enforced against you, speak to the team at Cove Legal on (08) 6381 3026.

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.

 

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Defamation Basics Part II

Part II - Defences to a defamation claim

In the last blog we discussed what is required to bring a defamation claim in Western Australia under the Defamation Act 2005 (WA) (see blog post, Part I – Bringing a defamation claim in Western Australia).  Today we will consider what defences are available to a defendant facing such a claim.

To balance the private right to protect one’s reputation with the public right to freedom of speech, there are a range of defences provided in Division 2 of Part 4 of the Act.

  • Truth and justification – if the publication is true, then the defendant has a complete defence.  The legislation also provides that if the defendant proves that the defamatory imputations are substantially true, then the defendant has available the defence of justification.
  • Contextual truth – applies where there is a publication which has a number of defamatory imputations, some of which are true and some that are not, and the untruthful imputations do no further harm to the reputation of the plaintiff due to the truth of the statements that are correct.
  • Honest opinion – for this defence the defendant must prove: (i) the matter was an expression of opinion of the defendant, rather than a statement of fact; (ii) the opinion related to a matter of public interest; and (iii) the opinion was based on proper material.  The defence is defeated if the plaintiff proves that the opinion was not honestly held.
  • Innocent dissemination – this defence most relates to publishers who are not the authors of material, such as a website or social media platform that allows users to post material online. The defendant must prove: (i) they were not the authors; (ii) they neither knew, nor ought reasonably to have known, that the material was defamatory; and (iii) their lack of knowledge was not due to their negligence.
  • Triviality – available if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any damage to their reputation.
  • Qualified privilege – the publication may have been defamatory, but the defendant was obliged to publish it for legal, moral or social reasons, and so is excused from liability.  The defence is defeated if the plaintiff proves that the publication was motivated by malice. This defence is most commonly relied upon by the mainstream press.
  • Absolute privilege – the defendant will not be liable if the publication of the statements were made in the course of particular public forums, such as in parliament or during proceedings in a court or tribunal.
  • Public documents and fair report of proceedings of public concern – a defendant will not be held liable for publication of defamatory material that was in a fair report of any proceedings of public concern, such as proceedings in public of a parliamentary body or proceedings in public of a court of tribunal, or statements contained in a public document (such as Parliamentary Report or Court Judgment).

Check out our next blog for the final instalment of our defamation series, Part III – Remedies: offers to make amends and litigation.

Cove Legal offers specialist expertise in the area of media law, with a focus on protecting corporate brands and reputations.  Roger Blow is a leading defamation lawyer in Western Australia and can be found listed as a social media law expert on expertguide.com.  He regularly provides commentary concerning media law issues to television, radio stations and newspapers such as the West Australian, The Age and AFR.

If you would like advice or assistance with any legal matters involving defamation, we would be keen to hear from you.  Please contact:

Roger Blow, Principal, Ph: +61 8 6381 0327 or roger@covelegal.com.au

Tennille Provost, Senior Associate, Ph: +61 8 6381 0326 or tennille@covelegal.com.au  

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.

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Defamation Basics Part I

With the growth in popularity of social media platforms such as Facebook, Twitter and Instagram, the number of defamation claims in Australia has increased significantly over the past few years.  The online community is fast learning that it is subject to the same defamation laws as newspapers and other news outlets and that they need to think before they post or tweet, or indeed even before they ‘like’.

In this blog series to be released over three editions, we explore what an aggrieved person (or plaintiff) must prove to succeed in an action for defamation; what defences are available to the publisher (or defendant); and finally, the remedies available to the plaintiff, including issuing a concerns notice and commencing proceedings against the defendant.

Part I – Bringing a defamation claim in Western Australia

The law of defamation in Western Australia is governed by the Defamation Act 2005 (WA), which came into force on 1 January 2006 as part of new uniform defamation legislation that applies to all States and Territories.

To establish a claim for defamation, the plaintiff must be able to prove all of the following:

  • Publication – broadly defined in the legislation to include both verbal and written material, such as texts, emails, images and online communications.  The images or words must have been seen or heard by a third person.  Liability for defamation will extend beyond the original author in circumstances where the communication is then shared (for instance, by ‘sharing’ on Facebook or ‘retweeting’ on Twitter).
  • Identification – if the publication does not directly name the plaintiff, there are facts or details which enable the ordinary reasonable reader to identify the plaintiff.
  • Defamatory – the publication contains false information, an imputation or a representation about the plaintiff that damages their reputation or makes others think less of them.  This is determined by considering whether an ordinary, reasonable person would think less of the person about whom the material is published.

A claim for defamation is only available to either individuals or else corporations with less than 10 employees or not for profit or charitable organisations.  Court proceedings must be issued against the defendant within one year of the publication of the defamatory material.

Check out Part II in our defamation blog series, Defences to a defamation claim.

Cove Legal offers specialist expertise in the area of media law, with a focus on protecting corporate brands and reputations.  Roger Blow is a leading defamation lawyer in Western Australia and can be found listed as a social media law expert on expertguide.com.  He regularly provides commentary concerning media law issues to television, radio stations and newspapers such as the West Australian, The Age and AFR.

If you would like advice or assistance with an legal matters involving defamation, we would be keen to hear from you.  Please contact:

Roger Blow, Principal, Ph:   +61 8 6381 0326 or roger@covelegal.com.au

Tennille Provost, Senior Associate, Ph: +61 8 6381 0326 or tennille@covelegal.com.au

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.

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Cricket legend Brad Hogg joins Cove Legal to discuss mental health issues with local teens

Cove Legal's Roger Blow and cricket legend Brad Hogg will be presenting to kids at the Margaret River Senior High School tomorrow on the issue of mental health and the work of LifelineWA and Youth Focus.

Brad is an ambassador for LifelineWA and Roger has been heavily involved with Youth Focus and together they share a common objective to try and address the stigma of mental health problems in WA.

Roger and Brad are in Margaret River as part of their involvement with Cove Legal Racing and the Tour of Margaret River cycling event which starts this weekend. #TOMR17 #YouthFocus #Lifeline

 

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Cove Legal provides commentary on a new babysitting app

Cove Legal Principal, Roger Blow, was recently asked to comment in The New Daily article, ‘Uber for babysitters’ app Gobi could be the future for ad-hoc childcare.  The article discusses a phone app which offers parents an on demand babysitting service. 

To read the whole article and Roger’s comments go to:

http://thenewdaily.com.au/life/home/2017/11/05/uber-for-babysitters-app-gobi-childcare/