Defamation and defences

Chapter 8.3Sticks and stones may break your bones, but names can never harm you.’

What does this children’s chant mean and why can names harm you? Discuss.

Defamation Cases

• Teacher Sues• http://www.smh.com.au/technology/technology-news/the-tweet-tha

t-cost-105000-20140304-341kl.html• Yahoo Sued -

http://www.smartcompany.com.au/technology/online/25251-yahoo-ordered-to-pay--225-000-by-victorian-court-for-defamatory-publication-in--landmark--case.html#• Joe Hockey sues – Federal treasurer • http://www.smh.com.au/national/joe-hockeys-defamation-win-highli

ghts-the-legal-pitfalls-of-social-media-20150630-gi1lv5.html

Discuss what outcome you expect if the following go to court?

1. Dermot writes a report on Jasmine, who is a poorly performing student, and her parents threaten to sue.

2. Tony writes an article in a newspaper claiming that Bob, a member of parliament, is corrupt.

3. Elizabeth produces a review of an art show, calling the work on display ‘rubbish’.

4. Remy replays defamatory comments made by Kait about Brian on her community radio show.

5. Mahalia publishes an article stating that Hieu has been convicted of assault when he was actually convicted of murder.

What is defamation?

• Protects people from unjustified attacks on their good name. • It is defamatory if reasonable people would form the opinion that the

communication resulted in a person's reputation being damaged. • It must damage the reputation of the person or entity (business or

group) among a significant section of the community and not just a limited section of the community.• Defamation law is found in the common law and the Defamation Act

2005 (Vic.). • To succeed in a claim of defamation, the plaintiff must prove the

presence of three elements.

Three elements must be proved

1. Publication. Communicated to at least one other person besides the person being defamed.

• If you wrote a false statement about someone, but only gave it to that person, defamation would not be published. • if you were to put it up on the internet for others to read it is published2. Identification. The defamatory statement identifies the plaintiff.• the statement refers to the plaintiff. • There is no such thing as group defamation, eg all doctors are money hungry3. Damage. Damage to reputation has occurred.• Intention of the comments are irrelevant

Remedies

• The main remedy is an award for damages to compensate for the harm caused. • A court must ensure the amount reflects the degree of harm suffered

by the plaintiff. • The amount of damages for non-economic harm is capped • An injunction also may be used as a remedy. (prevention of a

statement being published)

Defences to defamation

1. Justification:• the material published is justified because it is the truth. • If this defence is accepted, there can be no defamation as the plaintiff's reputation

has not been damaged. • The published statement is merely stating what is already known.2. Contextual truth:• the defendant can show that, in addition to the material complained about by the

plaintiff, the publication contains one or more statements that are substantially true.• For example, if a newspaper publishes an article that is substantially true, but states

amongst other matters that Bill Smith has been convicted of assault when in fact he has been convicted of armed robbery it is unlikely to harm Bill Smith's reputation

3. Absolute privilege:• is a complete defence that enables people to say whatever they want without being

liable for defamation.• The Defamation Act limits the number of situations where absolute privilege

applies. • These include statements made during parliamentary proceedings, court

proceedings or publications4. Fair report of proceedings of public concern• the defendant publishes a fair report of any proceeding of public concern including

parliamentary proceedings, public inquiries, local government proceedings, a public shareholders meeting, or proceedings of a sports or recreation association

5. Qualified privilege• in a limited range of situations where the defendant can show that the persons

receiving the publication have an interest in the subject and that the defendant's conduct in publishing the material is reasonable in the circumstances.• this defence may be used include comments made in the course of writing a

reference for someone, and statements made to the police. However, a defendant who abuses the privilege by being motivated by malice (spite) is not protected by this defence

6. Honest opinion• an expression of opinion rather than a statement of fact• relates to a matter of public interest;• based on proper statements made by a reporter as part of a review of an art show,

a music performance or a movie can be regarded as an honest opinion

7. Innocent dissemination • applies if the defendant can show they unknowingly sold or

distributed a defamatory publication.• protects book sellers, newsagents, libraries or the provider of

electronic services such as internet web sites. The defence will fail if the plaintiff can show the defendant knew or ought to have known the material was defamatory.

8. Triviality • circumstances where it is unlikely that the plaintiff will sustain any

harm.• An example is publication of material that is mildly offensive to the

plaintiff.

Your Turn

• Complete questions 1-3 and question 5• Complete question 4 as an extension task option