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breach of trust/defamation of character?

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robmac67 View Drop Down
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  Quote robmac67 Quote  Post ReplyReply Direct Link To This Post Topic: breach of trust/defamation of character?
    Posted: 14/January/2012 at 19:59
Hi,

I was wondering if there are any remedies regarding the following:

I sent an email marked 'confidential' to a family member seeking their advice, which contained highly sensitive and personal information regarding abuse I had suffered as a child.

I believe through talking to other family members that the recipient of my email maliciously discussed its contents with other family members in a derogatory and malicious way.

As there is no fiduciary relationship involved, is this actionable?

Many thanks in advance

Rob

turboadam View Drop Down
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  Quote turboadam Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 15:04
No, but you just found out who ISN'T your Ffriend or confidante

Help given where warranted, sarcasm given at all other times!

robmac67 View Drop Down
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  Quote robmac67 Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 17:11
You're right about that but I'm not sure that I don't have any remedy.

Regarding breach of trust and there being no fiduciary relationship involved, I wonder if the fiduariary requirement can be extended to a family situation (Nephew and Uncle) where a 'special' relationship exists and confidentiality can be reasonably expected?

Regarding defamation of character, I wonder also if the defence of truth is vitiated by the intent of maliciousness and the nature of the content - viz. not being in the public interest to hear or read it?

And can just distributing some horrible truth in itself be a (constructive)defamatory act?

This concerns me greatly as I mentioned my sibling in the email who also suffered this abuse and is curently suicidal.

Rob

MickOne View Drop Down
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  Quote MickOne Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 18:41
Hi Rob,

What are you attempting to achieve? Put the issue of whether you have the ability to take action aside and answer that question.

The remedies for defamation are not going to help make your sibling any less suicidal. A long protracted civil action between families members is a real option of last resort.

robmac67 View Drop Down
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  Quote robmac67 Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 20:42
Hi MickOne,

What I'm attempting to achieve is to ascertain my legal position, which I thought was fairly obvious. As such, I cannot put 'that' question aside as it's one and the same thing.

Once I have ascertained my legal position, I will then consider my next move, which will hopefully be demanding the other party to cease and desist, which will help my sibling.

A long and protracted battle between family members is also obviously the last resort, but as is standard practice with any potential complaint or suit, it's wise to know one's position at the outset, especially given the penalties for erroneously threatening a defamation action upon another party, which I'm sure you are aware.

BTW - Are there any actual lawyers here?

AsiaOilDude View Drop Down
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  Quote AsiaOilDude Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 21:41
No.
Not legal advice. Personal opinion only. Seek legal advice from qualified personnel only.

khon View Drop Down
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  Quote khon Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 21:54
Yes, a few, at least there is the famous Peter Murphy.
Personal opinion only, should not take it as legal advice

felonious green View Drop Down
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  Quote felonious green Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 22:54
With the remainder being avid fans of LA Law. :)

AsiaOilDude View Drop Down
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  Quote AsiaOilDude Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 23:31
A significant number of postings don't need legal answers but commonsense answers. I'd say yours is in that category with perhaps the exception of ensuring that any sexual abuse is reported (there is no statute of limitations on S.A.).
Not legal advice. Personal opinion only. Seek legal advice from qualified personnel only.

MickOne View Drop Down
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  Quote MickOne Quote  Post ReplyReply Direct Link To This Post Posted: 15/January/2012 at 23:47
Hi Rob,

Your intent on posting here was obvious, you intended outcome for the situation is what I really wanted to ascertain.

That outcome, 'stopping them saying hurtful things' will likely not be achieved by legal means.

You would have a number of evidential issues proving your defamation suit, particularly if most of what you are referring to as the hurtful imputations were verbal.

If you invested the months to years in a legal suit for defamation, I fear you would be keeping a sore bleeding, rather than seeking a more effective way to heal your wound.

Finally, no matter the outcome your uncle can continue to act like a fool, as there are virtually no remedies to a defamation suit that will stop your uncles personal stupidity or ignorance to your situation should he choose to continue to keep saying the things he does.

Besides, if what he is saying is the truth, your on very very shaky ground.

robmac67 View Drop Down
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  Quote robmac67 Quote  Post ReplyReply Direct Link To This Post Posted: 16/January/2012 at 01:53
G'day AsiaOilDude,

No, you're wrong, I'm afraid. As anyone who has studied or practiced law knows, law has little to do with commonsense, or 'justice' for that matter.

Law is instead the application and interpretation of dynamic rules and principles, which in isolation can seem or actually are completely ridiculous.

What I was after in these posts was specific case-law and specific statute-law.

For instance, if 'love and natural affection' is deemed 'consideration' in this scenario (as it can be in a contract), then a implied contract may have been entered into and the doctrine of promisory estoppel aplied.

You may want to reconsider giving advice, as legal issues are often very serious and/or emotional, and your flippancy and erroneous understanding of the law may not be appreciated.

AsiaOilDude View Drop Down
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  Quote AsiaOilDude Quote  Post ReplyReply Direct Link To This Post Posted: 16/January/2012 at 02:22
What, it's not commonsense to suggest that you're better off not wasting years and thousands of dollars pursuing what others as well as myself see as a non legal situation? IF you want case law etc quoted, perhaps hire a paralegal or law student to do your footwork or get a subscription to the legal case databases.
Not legal advice. Personal opinion only. Seek legal advice from qualified personnel only.

robmac67 View Drop Down
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  Quote robmac67 Quote  Post ReplyReply Direct Link To This Post Posted: 16/January/2012 at 02:24
Thanks MickOne,

You make several good points and I knew when I started that I was on shaky ground.

I studied law ten years ago (am no longer in this field) and had hoped that the law in this area had changed. As I said above, there are some articles around that discuss how the requirements of a fiduciary relationship in a breach of trust suit may be changing.

And you're right concerning the evidentary problems, but some of his comments may be on email, which does provide some hope.

Regarding years of litigation, that wouldn't happen in this case as he doesn't have the means. It will simply be the scenario (if this is actionable) of demanding he shut-the-f*ck-up, with or without an injunction, and threatening him with years and years of litigation (bankruptcy), if he doesn't.

As I am in a far more advantageous position financially, this threat would stop him. However, as I said, you have to be careful when threatening someone regarding defamation as there are penalties for doing it in the incorrect manner or without deemed justification.

Thanks again

cheers

Rob    



Edited by robmac67 - 16/January/2012 at 02:29

MickOne View Drop Down
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  Quote MickOne Quote  Post ReplyReply Direct Link To This Post Posted: 16/January/2012 at 08:09
Rob - your comment about law not involving common sense is way off base. When people do not apply common sense to the question of: "I can take action, but is it the smart/right/best move to achieve my objective?" the actions that follow are generally not positive for all concerned. I believe that was the point AOD was making.

I have seen many a situation where the shut-the-f-up actions serve to give the other party's imputations more gravity, rather than to make them keep silent/stop the offensive behavior. Particularly if the action goes beyond a few terse letters to actual filing.

At the end of the day you could take action, it may work, or it may blow up in your face.

Edited by MickOne - 16/January/2012 at 12:49

AsiaOilDude View Drop Down
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  Quote AsiaOilDude Quote  Post ReplyReply Direct Link To This Post Posted: 16/January/2012 at 12:45
I've done some googling of email privacy and remedies in Australia out of curiosity. Firstly as this was not a work related email you can toss out a whole bunch of possible remedies. Secondly FOI rules don't apply (but Office of the Information Commissioner (WA) Tel: 9220 7888 Fax: 9325 2152 Email: info@foi.wa.gov.au) has interesting articles posted. Thirdly this was not an attorney - client communication so it is not privileged or protected.

I think what you have is xogous to posting a letter. Once sent, you lose control. What has been done with the contents however maybe slander? The most obvious remedy you'd have is via defamation and slander (not libel), I found this http://www.efa.org.au/Issues/Censor/defamation.html to be interesting and quite up to date.     Furthermore the Privacy commissioner (http://www.privacy.gov.au/topics/technologies) has some interesting information online.
Not legal advice. Personal opinion only. Seek legal advice from qualified personnel only.

felonious green View Drop Down
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  Quote felonious green Quote  Post ReplyReply Direct Link To This Post Posted: 16/January/2012 at 18:04
My 0.02c is you wont get anywhere near the resolution your seeking and will only make a bad situation worse.
Based on the fact there are serious implications in whats going on it would seem to me that your time and knowledge is not being put to productive and ultimately beneficial use. Nailing the uncle would do little to help the actual root cause of why you sent the letter in the first instance.

Unless you are very certain that you absolutely must pursue him and throw consequences to the wind no matter what. In which case, your motives may be clouded and again not ultimately gainful for anyone.

After all there is at least a handful of other ways that you could let him know very clearly that he is not cool, not cool at all.

Edited by felonious green - 16/January/2012 at 18:06

AsiaOilDude View Drop Down
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  Quote AsiaOilDude Quote  Post ReplyReply Direct Link To This Post Posted: 17/January/2012 at 00:03
How bad was the abuse? If it was the occasional slap, I guess I can see why the Uncle made fun / derogatory comments. If it was much more serious, then it's unfortunate he doesn't realize this. Perhaps explaining to him in a one on one, might help him develop some empathy.
Not legal advice. Personal opinion only. Seek legal advice from qualified personnel only.

Atikin View Drop Down
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  Quote Atikin Quote  Post ReplyReply Direct Link To This Post Posted: 17/January/2012 at 16:44
A defamation action is about things being said or published about you which are untrue, it does not apply to passing on information that was meant to be kept confidential.
You and/or your nephew could take out an AVO against the abusive Uncle.
There is no fiduciary relationship at law between family members, you have no legal recourse apart from an AVO.
It sounds like you and other family members have suffered a great deal of damage, this is not something you should attempt to resolve yourself, seek professional assistance as soon as possible.

robmac67 View Drop Down
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  Quote robmac67 Quote  Post ReplyReply Direct Link To This Post Posted: 18/January/2012 at 03:57
No MickOne - my comments aren't off-base - they're actually spot-on.

The law itself is not based on common sense - and legal problems cannot be judged by a generic common-sense either.

For what is common-sense?

And common-sense to whom?

If a non-animal lover had their dog stolen and they didn't really give a rat's, common-sense would dictate that they find a new dog (if they wanted one) and forget about it.

If an animal-lover had their dog stolen and they dearly loved the dog, common-sense would dictate that they call police, put out a reward, check pounds, put adds in the paper and spend whatever they could afford to recover it.

Common sense is subjective.

And for that reason a global judgement cannot superficially be made.

So I understand why AOD made his comments but they were over-simplistic - and therefore by inference, slightly insulting.

Regarding the shut-the-xxxxxx-up letters, you are correct in that it may be the worst thing to do.

Ignoring his actions may be the best move, but as I've said a few times above, I'm just establishing my position and options.

Edited by robmac67 - 18/January/2012 at 04:06

robmac67 View Drop Down
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  Quote robmac67 Quote  Post ReplyReply Direct Link To This Post Posted: 18/January/2012 at 04:01
Thanks AOG,

I agree with everything you said.

And you made a relevant point regarding what has been done to the contents, and not the contents itself. As has previously been pointed out, truth is a defence, but not malicious and false remarks made about them, or their author.

That is exactly the aspect that I'm considering.

Regarding the privileged/protected communication - you're quite right, but as I said above, there are legal articles around discussing the extension of that doctrine to non-privileged/fiduciary situations. I think this possible movement in law is due to the internet and especially facebook, where on-line bullying is becoming a huge and serious problem.

re: the abuse, it was far from the case of an occassional slap, which my 'family' well-knows. My first beating was in grade two, where I lost partial vision in my right eye from getting repeatedly kneed in the face and had two ribs broken and two cracked from getting kicked while on the floor. The last beating I received was during my TAE exams, two weeks before I turned 17.

My sister has her own horror stories, and I still dream of them to this day.

As my attempt to explain this to my Aunty and Uncle (in very vague and general terms) led to this reaction, I doubt any further reasonable communication is appropriate.

Maybe it's time for him to become responsible for his words and actions.

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