Defamation laws have been developed over a long period of time. Its purpose is to provide relief or recourse whose reputation has been harmed (or likely to be harmed) by the publication of information about them. Ideally defamation laws exist to balance freedom of speech from going out of hand and damaging the reputation of an individual. However, more often than not defamation laws are used to stifle speech.
The information in this article is for general advice only and should not be relied on as specific legal advice. Should you have any particular questions please consult your solicitor or contact the author directly. The information in this article is mostly related to publications published in New South Wales after 1 January 2006.
In this day and age where the publication of information is no longer confined to large journals or newspapers, a basic knowledge of how defamation laws work becomes relevant to a blogger or tweeter. A careless statement, even if it was intended to be an honest opinion, may open the writer to a host of problems, even before the matter is heard at court. In July 2009 a US real estate management company brought proceedings against a tenant who had tweeted her dissatisfaction with the company!
There are three things that a person bringing an action of defamation (“the plaintiff”) needs to prove in order to be successful:
- That the material (be it published material or communication of some sort) has been published to a third person
- That the material identifies the plaintiff
- That the material is defamatory
It is difficult to define what is defamatory material. This is complicated by the fact that different jurisdictions may define it differently. The general test for determining if material is defamatory is:
- Does the communication harm the plaintiff’s reputation?
- Does the communication result in the plaintiff being exposed to hatred, contempt, or ridicule?
- Does the communication lead to the plaintiff being ostracised or shunned?
If the answer to any of the questions above is “yes”, then such material may be defamatory.
Defences to Defamation
If the plaintiff cannot prove or show that its case has the elements described above then the action fails. However if they do, then the next step is to consider if the person defending the action (“the defendant”) has a defence under the defamation laws. There are a number of them, including:
- Justification / Truth – If you can show that the material is substantially true
- Absolute Privilege – For example, during parliamentary or judicial proceedings
- Publication of Public Documents – If the matter was contained in a public document or extracted from a public document
- Fair Report / Qualified Privilege – If the matter is a fair and accurate report of parliamentary or judicial proceedings or public meetings on matters of public interest
- Honest Opinion – An honestly held opinion or a criticism, based on proper material.
- Innocent Dissemination – This is usually used by advertisers or ISPs in saying that they were not aware that the published material is defamatory and they published it as an employee or agent.
- Triviality – In the circumstances the material is trivial and the plaintiff not likely to suffer harm
The scope and number of defences available may differ between jurisdictions.
The new legislation also limits the time for action to one year after the publication of the material. The court does however have discretion to extend this period.
Recent changes in defamation laws have also restricted the ability of corporations to sue for defamation. A corporation may still sue if it is a non-profit corporation, not a public authority, or has less than 10 employees.
If you are a person who blogs, tweets, or otherwise publishes material on the internet, there are a number of steps you can take to manage the risk of defaming someone:
- Consider who is identified in the material published.
- Put yourself in their shoes, and look at it from their perspective.
- Consider the whole of the material, including headlines and pictures or illustrations.
- If some statements or assertions are ambiguous, consider if clarification or editing may clear the message up.
- If you are going to defend the statements as being true, then consider what proof you have. The proof must be admissible in court. There’s nothing better than a smoking gun, however there’s a difference to a smoking gun and just having a license to owning a firearm.
If you do find yourself in a situation where you are threatened with action, you should firstly seek legal advice. However, you should also consider if you would like to “make amends” under the defamation laws by apologising, clarifying, retracting, or correcting the statement. The new defamation laws allow such things to happen within a certain time period.
Defamation is not a matter that should be taken lightly. The law in the area is highly complex and to a certain extent unpredictable. Significant costs are likely to be incurred in an action for defamation and oftentimes these costs may be incurred even before the matter proceeds to a hearing. Sometimes even if a writer has facts by their side, they may lose out in a battle of legal costs. It can be an expensive game of chicken.
Anyone publishing or communicating any material at all should consider of the dangers of having an act of defamation brought towards them. A review of the material before publishing or communicating is necessary and advised. A social media policy of sorts that covers defamation is recommended for companies who allow their employees to use social media like Facebook or Twitter.
At the end of the day however, if you are writing or making a comment that may contain very strong imputations or language – even if it for the public interest or even if you do have proof – this may open you towards an action of defamation. While having a defence is good, you alone have to decide if you can shoulder the cost of defending such an action should that happen. A balance has to be struck between distributing your message and exposing yourself to risk.
About Phang Legal
Phang Legal is a progressive and dynamic law firm offering a different attitude to the practice of law and a different approach to the delivery of legal services. The firm continues to honour the traditions and standards of the legal profession, while remaining current and relevant to ever changing client requirements and expectations. Phang Legal provides cost effective and practical solutions across a wide range of practice areas including conveyancing and property law, corporate and commercial law, litigation and dispute resolution, wills and estates (elders law), legal aid and criminal law, and notary public services.
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