Defama­tion — Q & A

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.

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