Chapter 17

Perils of defamation

Introduction – the aims of this lecture are to help you

understand:

• Australian defamation law• The three components of

defamation• Why you need to protect yourself• The key defences to defamation• How to protect yourself

The purpose of defamation law

• We all have a duty to avoid unnecessarily damaging another person’s reputation

• Defamation law aims attempts to balance free speech against reputation

• It provides a remedy for a person whose reputation has been unfairly damaged

Why should journalists understand defamation law?

• So they can keep themselves and their employers out of trouble

• So they are not intimidated by the law

• Because a sound understanding of the law makes it harder for others to mislead them about legal matters

Reversal of onus of proof

• A person accused of a crime is regarded as innocent until proved guilty beyond reasonable doubt

• A person accused of the tort of defamation (a civil law) must prove themselves innocent

• That reversal of proof has a ‘chilling effect’ on journalists

What is a tort?

• Torts date from medieval times• The idea is that everyone has a duty of

care to others• In relation to defamation we have a

duty not to damage the good name of another

• If we do cause such damage without a good excuse, then we have to compensate the person whose name we smeared

Defamation defined

• Defamation can be either verbal (slander) or written (libel), although there is no distinction at law

• Defamation is any statement which injures a person’s reputation and/or damages their trade or profession

• It can be written or spoken words, a photograph, drawing, or cartoon

There are three elements to defamation

• A defamatory imputation: A statement or meaning which makes others think less of, or ridicule, a person

• The imputation must be about or concerning the person who claims to have been defamed

• The imputation must have been ‘published’

What is publication?

• It is less than most people think• At its simplest, publication is

deemed to have taken place when a defamatory imputation is communicated to a third person; that is, someone other than the person who created the imputation and the person the imputation was about

Beware of innuendo

• If you are going to defame someone, do it properly – come out and say exactly what you mean

• Do not leave readers, listeners or viewers to ‘read between the lines’

• They might read more into something than you ever intended

• Words or images need only make a suggestion for a defamation to arise

Most defamation happens by accident

• A journalist does not have to intend to defame someone for that person to sue

• Defamation by accident – as in putting the wrong caption on the wrong photo – is no excuse

• Worse, the new Defamation Acts state: ‘State of mind of defendant generally not relevant to awarding damages’

Defences• Truth, known as justification• Contextual truth • Absolute privilege• Qualified privilege• Publication of public documents• Fair report of proceedings of public

concern• Honest opinion• Innocent dissemination• Triviality

Truth / justification

• The onus is on a defendant to prove that defamatory imputations complained about by a plaintiff are ‘substantially true’

• The defendant must really believe that what she/he wrote was true

• So be absolutely certain that what you write is true – and you can prove it

• But proving ‘truth’ can be difficult

Contextual truth

• Applies if a defendant can prove that in addition to a broad defamatory imputation a plaintiff complains about, at least one other lesser imputation (a contextual imputation, which may not be 100 per cent correct) does no extra harm to the plaintiff’s reputation because of the substantial truth of the broader, main, imputation

Absolute privilege

• Absolute privilege only applies to participants, such as judges and witnesses giving evidence in open courts and members of parliament speaking in parliaments while they are formally in session

• In those circumstances absolute privilege protects everything that is said, no matter how defamatory and damaging it is

Qualified privilege

• Can apply if a defendant can prove that a recipient of defamatory information has an interest in having the information, if publication is reasonable in the circumstances and in the public interest

• Only applies if the person who is defamed has been given an opportunity to put their side of the story

• Does not apply if publication was motivated by malice

Qualified privilege defence applies to:

• Publication in good faith for the public good

• Publication in good faith in the course of a discussion of a subject of public interest for the public benefit

• Personal communications when one person has a duty to be open and honest with another

Te benefit from the defence of qualified privilege

• A publication must be ‘reasonable in the circumstances’

• The publication must have included the plaintiff's side of the story, or a reasonable attempt must have been made to obtain a response from the plaintiff

• Publication must have been without malice

Publication of public documents

• Re-publication of official documents, or fair extracts from official documents

• Examples include:– Court or tribunal transcripts, orders, and

judgments– Reports and papers published by

parliaments and local councils– And documents published officially in

another country

Fair report of proceedings of public concern

• Applies to reports of:– A parliament– Local council meetings– Courts– Public inquiries and standing commissions of

inquiry such as ICAC in New South Wales– International organisations or governments– Sporting tribunals– Public meetings– Meetings of shareholders of public companies

Honest opinion• Honest opinion is a defence but only

if:– A comment article is an expression of

opinion on a matter of public interest– The article is fair– It is based on facts– The person who makes the comment

honestly believes it– Any person who is criticised is offered a

right of reply, or right to put their side of the story

Innocent dissemination

• Can apply to:– Booksellers– Newsagents– Librarians– A broadcaster if it has no effective

control over what is said

Triviality

• Publication of defamatory matter unlikely to cause any real harm

How to minimise defamation risks

• Always write to the defences – especially qualified privilege and truth

• Never make assumptions• Make accuracy a habit – spell names correctly• Always present all sides of an argument and at

least attempt to give each protagonist a say• Be fair and balanced• Never be malicious• Do not write things that are outrageous• Clearly distinguish between fact and opinion