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30 July 2010 Defamation - Q & A

By Richard Ottley, Partner

What is defamation all about?

Defamation law is all about protecting reputation. Where a person has published something whether orally or in permanent form about somebody else to a third person or persons which is defamatory, then the person defamed may have an action in defamation.

Something is defamatory if it causes the audience to think less of the person defamed or is likely to cause them to shun or avoid that person. A communication of defamatory material can take many forms including novels, poems, cartoons, paintings, photographs, songs and satire.

Why does the law of defamation matter?

As Shakespeare said in Othello (Act 3 Scene 3):

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ‘tis something,
nothing;
‘Twas mine, ‘tis his, and has been slave to thousands:
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

Developing and maintaining a good reputation is critical in business. On a personal level a poor reputation has its own consequences. A reputation may take years to develop and seconds to destroy. Once destroyed it may be very difficult to recover. This informs the need to respect the reputations of others and to protect your own and your businesses’ reputation by exercising vigilance and due care in what is published.

What are the essential elements of a defamation action?

To succeed in a defamation action you need to be able to prove 3 things:

  • That the matter published has been published to a third person
  • That the publication identifies or is capable of identifying the plaintiff
  • That the publication bears a defamatory meaning

If you can establish these things then subject to the defences you can succeed in an action in defamation. Individuals can sue for defamation. Companies can sue for economic loss resulting from defamation in some circumstances depending upon the size of the company. Defamation laws for example in New South Wales, provide that corporations with fewer than 10 employees may sue. Larger companies may not sue in defamation but may be able to access other remedies such as s52 of the Trade Practices Act or the tort of malicious falsehood. In some instances senior officers such as the CEO, may sue in respect of defamation directed at a company on the basis that they were implicated by the defamation. In New South Wales, generally speaking, defamation proceedings must be commenced within 12 months of the date of publication.

What are the defences to action in defamation?

There are a number of possible defences to an action in defamation including for example:

  • Justification
  • Honest opinion
  • Qualified privilege
  • Innocent dissemination
  • Offer of amends

A person who has been defamed will need to defeat all possible defences raised by the publisher in order to succeed in a defamation action. The defences are complicated and will need careful consideration.

Generally speaking persons who repeat or republish a defamation are liable for that publication. However defences may be available where a party innocently disseminates information as for example provided for under the Innocent Dissemination defence in the NSW Defamation Act. Additionally, internet content hosts and internet service providers may enjoy limited protection under the Commonwealth Broadcasting Services Act in relation to the publishing of internet content.

There are some situations (covered by the defence of qualified privilege) in which a person can publish material in good faith which is defamatory, but because of the nature of the occasion and the participants, there is limited protection at law. One example is in the setting of a structured disciplinary process where an employer receives and investigates allegations concerning employees. However these kinds of occasions are limited and should be understood and respected.

Beware the use of emails

The ease with which emails can be generated and circulated, directs attention to the need to be cautious in what you send by way of email. For example, in a recent NSW Supreme Court decision in 2009, of Ryan v Premachandran, a principal of a primary school was awarded in the order of $80,000 as a consequence of a defamatory email sent by a disgruntled parent to 14 parents of the school, claiming that the principal was providing inadequate teaching.

Be aware that emails can have a far broader audience than originally intended. If you are the recipient of an email which may be defamatory, think carefully before you republish it by forwarding it on, as you may be acquire a liability for republishing that defamatory material (even though you are not the original author).

Conclusion

Whatever media you are proposing to publish something in, consider carefully what you say, write, send or forward. It is worth noting that it is the “imputation” or meaning which flows from what you publish, which forms the basis for an action in defamation. You may not intend for a particular meaning to flow from what you have published, but if that meaning does flow and it is defamatory, you may be liable irrespective of intention.

For further information please contact:

Richard Ottley, Partner  |  Phone: +61 2 9233 5544  |  Email: rbo@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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