Defamation: Action and Defences

•What constitutes defamation?•When does defamation occur?•How can you defend yourself?

Notes prepared by Paul Bethell & Martin Hirst

DEFAMATION

• The law that most affects journalists, writers and publishers

• Competing rights – free speech against right to defend reputation

• History of Defamation law in Australia – formerly different state and territory laws

• New laws introduced by all states and territories in 2006 now unify the law right across Australia

Defamation – a definition

• For a defamation action to be successful, three elements must be satisfied:1. the information was communicated by the defendant to

a third person other than the plaintiff (publication);

2. the material identifies the plaintiff (identification); and

3. the information/material contains matter that is defamatory, regardless of whether the material was intentionally published or not (defamatory matter).

What is defamation?At its simplest, defamation is tospread bad reports about someonewhich could do them harm.

DEFAMATION• It can be a VERY LONG process.• It can be VERY EXPENSIVE – for both sides.• Many cases don’t get to court as a result.• New laws made some attempt at reform• Personal damages capped at @$300,000 –

but per publication?• Aggravated damages also possible • Costs can also be awarded and can be

HUGE!

DEFAMATION• At the heart of defamation is the

concept of a lowered “reputation”

• Lawyers work on “imputations” – what are the main messages or impressions that the average consumer/reader/viewer/listener would get?

• The intention of the writer/broadcaster isn’t important

DEFAMATION• “I'M THE VICTIM, WAILS

BOOZING, POT-SMOKING, VIOLENT, RACIST, COWARDLY, UNAPOLOGETIC, LYING, ODIOUS, TRANSFER-LISTED LEE BOWYER (NOW TRY TO SUE US YOU LITTLE SCUMBAG!) “ Daily Mirror (UK), 19 Dec 2001

• What are the ‘imputations’ of this story?

DEFAMATION

• An action for defamation doesn’t RESTORE your reputation but merely allows you to seek damages for pain and suffering or for economic loss.

• “Slander” and “libel” distinction now abolished - Use the term “defamation” in all cases.

• It is mainly a CIVIL law matter – so PLAINTIFFS SUE DEFENDANTS . Defendants are found either LIABLE or NOT LIABLE for DAMAGES and also COSTS.

DEFAMATION

• CHECKLIST APPROACH:• Best to take it step by step:

• Is there a defamation in theory?• Is the plaintiff identified?• Has there been ‘publication’? • Are there any defences

available?

DEFAMATION

• 1. IS THERE A DEFAMATION IN THEORY?

• Concept of REPUTATION. • Courts will look for “imputations” -

What others think about you• NOT what you think about yourself PERSONAL REPUTATION PROFESSIONAL REPUTATION

DEFAMATION

• TEST FOR DEFAMATORY MATERIAL - Ask - does the material -

• EXPOSE THE PERSON TO HATRED CONTEMPT OR RIDICULE?

• LOWER THE PERSON ‘IN THE ESTIMATION OF A RIGHT-THINKING MEMBER OF SOCIETY’?

• CAUSE THE PERSON TO BE ‘SHUNNED OR AVOIDED’?

DEFAMATION

• It doesn’t have to be words. Cartoons, photographs, video, even the layout of stories on a page can be a problem…..

• The test is: “HOW WOULD THE ORDINARY PERSON INTERPRET IT? WHAT MEANING WOULD THE ORDINARY PERSON GET FROM THE MATERIAL?

• Negatives and denials are no defence. • Mistaken identity no defence

DEFAMATION

• 2. IS THE PLAINTIFF IDENTIFIED?• In order to have your reputation

lowered you need to be identified

• Beware INNUENDO

• Important to be precise about the person you are writing about (“Detective Lee” case 1934).

• Beware using fictitious names – Artemus Jones case 1910.

See Pearson 4e pp:196-198

DEFAMATION

• Groups of people can sue – IF they are thought to be referred to – Mount Druitt Case 2000.

• “Corporations” with more than 10 employees + “public bodies” like councils CANNOT sue.

• But charities and not-for-profit organisations CAN still sue.

• The dead can’t sue (except in Tasmania).

The class we failed

• Implication students had failed their HSC exams

• Identified individuals as members of this group of failed students

• Students successfully sued and won an apology

On 8 January 1997, the Daily Telegraph published the headline, "The class we failed" concerning was the Year 12 class at Mount Druitt High School in outer Western Sydney in which no student scored a Tertiary Entrance Rank (TER) above 50 (the maximum possible mark is 100).

Although the article made clear that the newspaper believed that the state had failed the students, many accused the Telegraph of branding the students themselves as failures and showing a full year photo identifying students.

DEFAMATION• 3. HAS THERE BEEN PUBLICATION?• Must be communicated to a third party. • The medium doesn’t matter• Publication is where the material is

RECEIVED (Dow Jones v. Gutnick 2002).• Anyone involved in publication can be sued • Anonymity online isn’t guaranteed • Actions can be brought up to 1 year from

publication.

DEFAMATION

• RECAP ON DEFAMATION ESSENTIALS:• Has a reputation been lowered?

• Is the plaintiff identified?

• Has there been ‘publication’?

• If all these are satisfied,then the court will discusswhether there is a defence.

DEFAMATION DEFENCES

• The defences split into two categories: • Those that are based on the material

complained of being true (Truth and Honest Opinion)

• Those that can succeed even if the material isn’t true (Absolute Privilege, Fair Report and Qualified Privilege, Innocent Dissemination, Triviality, Offer of Amends).

DEFAMATION

• TRUTH OR JUSTIFICATION DEFENCE• Truth doesn’t lower a reputation, it corrects

it.

• Material published must be “substantially true”.

• However, truth needs to be proved – evidence is needed

• Standard of proof - ‘on a balance of probabilities’

HONEST OPINION

• Relates mainly to opinion, comment, reviews and criticism. • Opinion pages, editorials, sports, arts, film,

music, restaurant reviews and also to letters and possibly weblogs and online comments.

A newspaper in Sydney has been successfully sued by a restaurant group after one of their food critics wrote a scathing review of his experience in their establishment.

The Australian courts have ordered John Fairfax Publications, the owners of The Sydney Morning Herald, to pay the owners of the Sydney restaurant, Coco Roco, on charges of defamation.

HONEST OPINION

• It must relate to a matter of public interest

• The opinion must be based on “proper material” – either true facts or matters protected by privilege.

• This “proper material” must be contained in the publication, or must be widely known.

• The opinion must be “honestly held” – that is the action is not malicious

FAIR REPORT

• Protects “fair and accurate” reports of court and parliament

• Also includes other meetings such as: proceedings of “a sport or recreation association”, a “trade association”, a “public meeting…. of shareholders”

• or a “public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest”.

allows free communication in certain relationships without the risk of an action for defamation –

generally where the person communicating the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it

QUALIFIED PRIVILEGE

Matters raised on the floor of the legislature (state & federal); OR

statements made in the course of judicial proceedings made by parties, witness, legal representative, members of the jury, or by the judge attracts ABSOLUTE PRIVILEGE

The defence of absolute privilege is attached to the occasion and not the content

QUALIFIED PRIVILEGE• Allows things to be published that may be

defamatory even if they can’t be proved• Must involve important, urgent matters

and issues that should be brought to public attention

• But the journalist must act “reasonably in the circumstances” – high standards and motives are required

QUALIFIED PRIVILEGE

• What does “reasonably in the circumstances” mean?

• the extent to which the matter is of public interest and whether it needed to be published urgently

• the extent to which the matter relates to the performance of public functions or activities of the plaintiff

• how serious the defamatory imputation is

QUALIFIED PRIVILEGE• the extent to which

suspicion, allegation and proven fact is distinguished

• the integrity of the sources• whether there was a

reasonable attempt to get the plaintiff’s side of the story and publish this response

• the steps taken to verify the information.

POLITICAL QUALIFIED PRIVILEGE• Lange v. Australian Broadcasting

Corporation 1997 – Common law case• Australian constitution contained an

“implied guarantee” that people in Australia should be free to discuss matters of government and politics

• But publication must be “reasonable in the circumstances”

• Common Law Qualified Privilege – relates to personal disclosures

INNOCENT DISSEMINATION

• Gives protection to people who sell or distribute defamatory material but who couldn’t be expected to know that it was defamatory.

• But would rarely be available to journalists,

writers or publishers – except with live broadcasting “in which the broadcaster has no effective control over the person who makes the statements”

“newsagent’s defence”

INNOCENT DISSEMINATION

• It typically would affect newsagents or libraries• Doesn’t affect Internet Service Providers • But controversial for weblogs and discussion

forums• ISPs are deemed to have “no effective

control” over websites• But the websites ARE deemed to have

“effective control” over people who post on them

TRIVIALITY

• “It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.”

• Possible defence for comedy and satire – no-one is expected to take it seriously and so there is no consequent damage to reputation

OFFER OF AMENDS DEFENCE• Without accepting liability, a publisher

can make an “offer to make amends”• Needs to be made in writing “as soon as

practicable” after the publisher became aware of the alleged defamation,

• But must be within 28 days of a written complaint being made about the material which details the plaintiff’s concerns.

OFFER OF AMENDSDEFENCE

• It MUST contain an offer topublish a correction

• It MUST contain an offer to payany reasonable expenses incurred by the plaintiff (the costs of legal advice)

• It MAY contain an offer of an apology• It MAY contain an offer to pay

compensation for economic damages

OFFER OF AMENDS DEFENCE

• Can be a complete defence – even if refused by the plaintiff - as long as it is:

• “reasonable in all the circumstances”, taking into account things like:

• the prominence and speed of the correction or apology

• the extent to which it reached the same audience or readership as the initial defamation.

NON-DEFAMATION REMEDIES

• Battle in negotiations over the new defamation laws about whether businesses could use defamation

• The new Defamation Acts prevent “corporations” of more than 10 employees from suing.

• It means businesses must look to other legal remedies when their business reputation is damaged.

TRADE PRACTICES ACT 1974

• Applies to “corporations” in the course of “trade and commerce”

• S.52(1) deceptive and misleading conduct

• S. 53 False or misleading representations • Can be sued by anyone who feels they

were misled or deceived and by anyone who claims they’ve lost money as a result of being misled or deceived….

TRADE PRACTICES ACT 1974

• BUT - Section 65A Defence:• S.52 and 53 do not apply to “prescribed

information providers” • Defined as “a person who carries on a

business of providing information”• So news organisations – a bit like “innocent

disseminators” – they can’t vouch for the information provided to them by interviewees and other sources

Reading

• Pearson: Journalist’s guide 4e Ch.8-9• Pearson: Blogging & tweeting Ch.2• Leiboff: Creative Practive Ch.6