Media, Defamation & Reputation ManagementThe Law of Defamation – the Basics

a) What is a defamatory statement or matter:

A defamatory statement or matter is a statement or matter which holds a person up to ‘hatred, ridicule or contempt’ or ‘tends to lower the person in the estimation of reasonable members of the Australian community’.

Issues to note:

Serious harm

[Note: This requirement applies to all Australian jurisdictions except for Western Australia and the Northern Territory]

A person can only bring an action in defamation if the person can establish that the matter as published has caused, or is likely to cause, serious harm to the reputation of the person.  That means that if the matter published only made trivial allegations about a person, the person will not be able to bring any action in defamation unless the serious harm issue can be established.

Corporations

A corporation with ten (10) or more employees cannot sue in defamation for publication in Australia unless it is a not-for-profit corporation. Note that for all Australian jurisdictions except for Western Australia and the Northern Territory, the corporation as a pre-condition would in any event need to establish that the publication of the matter has caused, or was likely to cause, the corporation serious financial loss.

However, individuals (such as directors or officers of the company) if reasonably identified may still be able to bring an action for defamation. They do not have to be named to be identified.  For example, a Chief Executive Officer or Managing Director may be identifiable as the person responsible for the allegations published against a corporation, and may thereby be able to bring an action in defamation.

A corporation may however also be able to bring an action for injurious falsehood.

Pictures/video matter can be defamatory

Words may seem harmless in themselves, but may become defamatory when accompanied by a picture or video. The pictures or video matter could also be defamatory in their own right.

People don’t have to be named to be defamed

As long as a person can be reasonably identified (and can also establish where applicable the issue of serious harm), they do not have to be named to be defamed.

A reference to a small group of people may sufficiently identify each of its individual members. For example, the Board of Directors of a corporation or the a first grade NRL team.

The publication of a denial of a defamatory allegation may not protect a publisher from liability

A denial may only succeed in negating a defamatory allegation if the denial goes exactly to the defamatory “imputation” that is conveyed, and outweighs it.  This is known as ‘bane and antidote.’  This may be particularly difficult to establish.

However, obtaining a denial and/or giving the subject of the allegation an opportunity to respond is an important element in some defences to defamation, and if a response is not sought by a publisher, any available defences may be limited.

Seeking a response may also establish an innocent explanation to the allegation.

Limitation period

There is generally a 12 month limitation period for the institution of proceedings for defamation, calculated from the date of first publication of the matter.

b) Defamation defences

Matter that is published that is critical of a person may be defamatory of the person,  but the matter may be defensible pursuant to the potential availability of a number of defences.  This is because in reality a person is only likely to take action for defamation if the matter cannot be defended.

Truth

The defence of substantial truth is often the best defence available to an action for defamation.

Important points to remember:

A publisher will usually have to prove the truth of all of the meanings (or imputations) conveyed by the matter that has been published.

The meanings have to be proved in court, which means that the publisher will  need admissible evidence to do so.

Contextual Truth

Matter as published may convey a number of different meanings.  For example, if one meaning is more serious than the other, then a contextual truth defence can apply when a publisher can prove that the more serious meaning is true, even if the publisher can’t establish the truth of the less serious meaning.  In other words, the true meaning (or imputation) ‘swamps’ the untrue imputation.

The rationale is that the first meaning (which is true) has such an adverse effect on the person’s reputation that the second meaning (which is not true) could not cause any further harm to that person’s reputation.

Honest Opinion

Material which is a statement of opinion on a matter of public interest may be defensible as opinion.

To establish the honest opinion defence, a publisher must be able to prove:

1. that the words are a statement of opinion and not a statement of fact;
2. the facts on which the opinion is based have been stated in the matter (unless they are notorious, i.e. so well known by the average person that they are matters of general knowledge) and the opinion has been clearly distinguished from the facts on which it is based;
3. the facts on which the opinion is based:
   1. are substantially true, or
   2. were published on an occasion of absolute privilege (e.g. proceedings in Parliament), or
   3. were published on an occasion of qualified privilege (see below), or
   4. were published on an occasion that attracted the protection of a fair report defence (see below);
4. the opinion is a genuinely held opinion of the person concerned and is fair, i.e. not malicious and is one a fair-minded person acting honestly could hold; and
5. the opinion is on a matter of public interest.

Fair Report

The defence of fair report applies to fair and accurate reports of the proceedings of various bodies, including:

1. court and tribunal proceedings and judgments;
2. parliamentary proceedings or inquiries and their reports;
3. other bodies as prescribed by applicable legislation.

The defence will not be available for a report which is unfair or inaccurate, or was not published honestly for the information of the public or the advancement of education.

Qualified Privilege

The defence of qualified privilege is available under common law and under statute.

The defences can be defeated where the publisher has acted maliciously.

Common Law

This defence is usually unavailable to the mass media.

Under common law, a communication will be protected by the defence of qualified privilege if:

1. the person who makes the communication (the publisher) has a duty (legal, social or moral) to publish the material;
2. the person to whom the communication or publication is made has a reciprocal interest or duty to receive the material communicated or published;
3. the person who makes the communication (the publisher) has an honest belief in the truth of the material; and
4. the communication or publication is made without malice.

Just because something is a matter of public interest, does not mean that there is a general duty on the part of a mass media publisher to publish it to the world at large. While it is not impossible that the requisite duty and interest might be present in a particular instance, such a situation would be extremely rare.

Statute

A defence of qualified privilege may be available where a publisher can establish that:

1. the readers have an interest or apparent interest in receiving information on a subject;
2. the defamatory material was published in the course of giving the recipient information on that subject; and
3. the conduct of the published in publishing the defamatory material was reasonable in the circumstances (see below); and
4. the publisher was not malicious in publishing the defamatory material.

The publisher must hold a reasonable belief in the genuine interest of the recipient (readers) in the story.

What is “reasonable” conduct?

Whether a publisher has acted reasonably may depend on all the circumstances, but to prove ‘reasonableness’ a publisher may potentially have to establish:

1. contact or attempt to contact the person referred to in any matter to be published to provide them with a reasonable opportunity to comment on the allegations made in the matter;
2. include in a balanced way the substance of their side of the story and their comments (if any) and in the publication;
3.  that they have taken care to use reliable sources and verify each available source of information; and
4.  that they have checked the accuracy and authenticity of any material contained in the publication.

Public Interest

[Note: This defence is available to all Australian jurisdictions except for Western Australia and the Northern Territory]

A public interest defence is available where a publisher can establish that:

1. the matter published concerns an issue of public interest, and
2. the publisher reasonably believed that the publication of the matter was in the public interest.

Some of the factors that may be taken into account in determining the availability of this defence are:

1. the seriousness of any defamatory meaning (or imputation) carried by the matter published;
2. the extent to which the matter published distinguishes between suspicions, allegations and proven facts;
3. whether it was in the public interest in the circumstances for the matter to be published expeditiously;
4. the sources of the information in the matter published, including the integrity of the sources;
5. whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;
6. any other steps taken to verify the information in the matter published.

 

This information is not intended to be a comprehensive review of the law of defamation, does not cover all aspects of the law of defamation, and does not constitute legal advice. Readers should obtain their own legal advice before applying it to specific issues or potential claims.