Tuesday, 16th of January, 2018

Defamation

Introduction

The law of defamation aims to protect a person's reputation against harm, while making due allowance for the need to preserve the right of free speech. Whether that balance is ever achieved is a matter of dispute. With the increasing presence of the internet in our every day lives, there are even more issues. The transborder nature of the internet has led to difficulties with defamation and jurisdiction. If someone in America is accused of defamation against a person in Australia, which jurisdiction and which laws govern that defamation? Every country has its own defamation laws, and court processes. The issue of where to hear a case, and by which laws the case should be decided adds extra cost and court time to a legal proceeding.

In 2006, Australian states enacted largely uniform defamation laws. This is known in each state as the Defamation Act 2005. The previous Tasmanian Act was the Defamation Act 1957. Now, the law concerning civil proceedings for defamation is contained in the Defamation Act 2005 (Tas) and for criminal defamation charges in Chapter XXIII of the Criminal Code Act 1924 (Tas). These provisions replace the common law with respect to defamation in this state, and repeal the 1957 Act. The discussion which follows concentrates on the civil remedies of a person who has been defamed. All sections referred to are from the Defamation Act 2005.

Perhaps the best general advice which can be given by way of introduction is that defamation actions are to be avoided. They are technical and require specialised professional services. The trial often takes place years after the defamation itself. For example, the case between Andrew Gunston and The Mercury. The defamation of which Gunston complained took place between May 2002 and August 2003. He was finally heard, and won record damages of $124,500, in the Supreme Court in April 2012. Before the enactment of new civil litigation legislation, and court attempts at streamlining the litigation process, such waits were not uncommon in civil cases such as personal injury or defamation.

In many cases, the matter is either not pursued or is settled with an apology or a retraction, although there is no right to either. The parties are left with legal bills to pay, which can be quite high. Occasionally, large awards of damages are made, but, relatively minor awards are far more common.

What is Defamation?

 Defamation can arise from written material or may be oral. To establish a ‘prima facie’ case of actionable defamation (whether libel or slander), the plaintiff must establish three things:

  • that the material was ‘published’ (the publication);
  • that the material identifies them (the issue of identification);
  • that the material is defamatory (the defamation issue).

Publication

Publication is established by proving communication of the material to someone other than the person defamed. This can be done by that person hearing spoken words or by their reception of visual material which can consist of written words or other images, such as television pictures, photographs or cartoons. But the important point is that the material must come to the attention of at least one third party. An insulting letter read only by the person to whom it is addressed is, therefore, not ‘published’, but, if addressed to the victim's firm and read by an employee, there is publication. Words broadcast on radio or television or printed in a newspaper and pictures so broadcast or printed will, obviously, be published.

Identification

Identification is usually established easily. The person aggrieved is often named in the publication, but this is not essential. If the publication refers to the plaintiff by necessary implication, or if the person’s identification with the events is a matter of notoriety, then identification can still be established. To say, for example, that all lawyers are thieves does not defame any one lawyer because no particular lawyer is named. However, to say that the lawyer for a certain person is a thief may well be held to defame that lawyer. Even though they are not referred to by name, there could be many potential recipients of the message who know the facts, and would identify that particular lawyer with it.

Defamatory Material

For material to be defamatory, it must be such that it is likely to disparage or discredit the person’s reputation. There are a number of ways this might occur:

  • expose a person to ridicule;
  • injure the reputation of the person about whom it is published; or
  • injure that person’s reputation in their profession or trade; or
  • cause ordinary persons to think less of them or to avoid them.

Something can be defamatory either:

  • in its natural or ordinary meaning; or
  • as a ‘true innuendo’.

The natural or ordinary meaning of words is the meaning which ordinary people would give them, whether directly or by inference, where no special knowledge is required for that inference to be drawn. For example, the words: ‘John Brown is a drunkard’ convey their message obviously. With a little thought, the ordinary person could derive the same message by inference from the words ‘'John Brown is to be found in the Brisbane Hotel most nights’.

On the other hand, a ‘true’ or ‘legal innuendo’ will arise where the words convey a special meaning only to persons possessed of special knowledge. For example, the words ‘John Brown is to be found most nights in a certain establishment on Brisbane Street’ would, perhaps, suggest the same characteristics in John Brown as the words cited in the preceding paragraph to those who happen to know that Brisbane Street is where the Brisbane Hotel is situated.

Defamatory material must injure the plaintiff's reputation. This depends on all the circumstances of the publication, including time and place – attitudes change over time, and influence whether a statement will be viewed as defamatory. It has been found in the past to be defamatory to say that a person is a ‘homosexual’, a ‘Communist’ or a victim of a rape or that a person has ‘scabbed’ on their union mates (in refusing to participate in an illegal strike) or even ‘has Negro blood’. Depending on the person about whom the suggestion was made and the context, it may not be the case that the same findings would arise today.

The injury to the plaintiff's reputation need not be intentional. A defendant could well think it a compliment to describe someone as ‘gay’, but a court would be entitled to find that this description was damaging to that person's reputation.

The damage can be quite accidental. A defamatory newspaper article about ‘John Brown’ could provoke a flood of actions from persons other than the real subject of the article. Similarly, a work of pure fiction could be held to have defamed a person who could show that they were likely to be identified as one of the characters.

Example – to who was the material referring?

The operation of these principles was illustrated in a case which came before the Queensland Full Court in 1987 (under repealed legislation). Mr. Warburton, then the Leader of the Opposition in the Queensland Parliament, said to a television reporter ‘just as the tide turned against the dictator Marcos, so too can Bjelke-Petersen and his corrupt government be swept from office’. This statement was broadcast on a news program. Mr. Bjelke-Petersen, then the Premier, sued Mr. Warburton and the television station. Plainly, he had been identified. The words had been published by Mr. Warburton, when he spoke to the reporter, and by the station, when it broadcast them. The real question was whether they meant that Mr. Bjelke-Petersen, himself, was corrupt, or whether they referred to the members of the Government, apart from him. It was held that the allegation of corruption was made against the Premier, as well as against his ministers, especially when it was considered that Mr. Bjelke-Petersen was compared with the former President Marcos ‘whose name has become a byword for corruption’. (Bjelke-Petersen v Warburton (1987) 2 Qd R 465).

Who Can Be Defamed?

Anyone can be defamed. The distinction is basically between real versus legal persons, people and organisations.

Changes to the Defamation Act mean that corporations have no cause of action for demation unless they are an excluded corporation at the time of the publication of defamatory material. An excluded corporation is one which either: employs fewer than 10 people and is not related to another corporation; or the objects for which the corporation was formed do not include obtaining financial gain for members or corporators (s9).

Unincorporated bodies may also defame and be defamed, but this depends upon the legal status of such a body. For example, trade unions and registered friendly societies can sue and be sued as such. An unincorporated club, on the other hand, could not sue but its individual members may be able to prove that each was defamed in a defamatory statement made about the club. If the executive of the cricket club publishes a letter defamatory of Bill Smith, Bill Smith may sue individually the people involved in the publication. If on the other hand, Bill Smith was to say of the club ‘The club is inefficient and corrupt’, officials responsible for the administration may claim that the statement reflects on their ability to do their jobs and may sue individually. In neither case may the club, as a club, sue or be sued.

Making Amends and Apologies

While making amends or offering an apology are not rights of a plaintiff, they are a legitimate means for a defendant to end litigation before it reaches the court. The offering and acceptance of amends means that an aggrieved person cannot assert, continue or enforce an action for defamation (s17). Amends are often called settlement offers. An apology, under section 20, does not constitute admission of fault, and while it does not affect the right to assert, continue or enforce an action for defamation, an apology is not admissible as proof of fault or liability in court (s20(2)).

Amends/Settlement Offers

Amends can be made generally, or in relation to specific defamatory imputations (s13). If two or more people published the matter in question, an offer of amends by one does not affect the liability of others (s13(3)).

Amends can be offered within 28 days of a publisher having notice from the aggrieved person; or if a defence has been served in the matter (s14). A concerns notice must be in writing, and indicate the defamatory imputations considered to be a matter in question (s14(2)). A publisher may request further particulars where an aggrieved person has failed to provide details of the defamatory imputations.

They have 14 days to give those further particulars (s14(4)).

Offers of amends must state the particular defamatory imputations to which it is directed; include an offer to publish a reasonable correction; include an offer to pay reasonable expenses incurred by the aggrieved person before the offer was made, and in considering the offer (see: s15).

Apologies

Apologies will bear as a factor in mitigating damages (s38(1)(a)). They cannot be submitted as evidence of admission of fault or liability by the defendant, to the court (s20(2)).

Presumptions

Once the plaintiff establishes that defamatory material which identifies them has been published by the defendant, certain presumptions arise.

It is presumed that the plaintiff suffered harm. At common law, a plaintiff alleging slander (oral defamation) was required to establish ‘special damage’ (that is, monetary loss). However, section 9 of the Act makes defamation actionable without proof of financial loss.

It is presumed that the plaintiff is of ‘good reputation’. It is for the defence to establish bad reputation, if it relies upon it.

Defences

Under the Defamation Act 2005, there are defences under the Act (ss25-33), common law defences, and defences available under other Acts (s24). The defences to defamation are as follows:

  • truth (s25)
  • contextual truth (ss25 and 26)
  • absolute privilege (s27)
  • qualified privilege (ss27, 28 and 30)
  • honest opinion (s31)
  • innocent dissemination (s32)
  • triviality (s33)

A person may suffer damage to their reputation, but may not win a defamation action if the defamer can rely on any of these defences.

Truth

The defence of justification was previously known as the defence of truth. Section 25 states that if a defendant can prove that the defamatory imputations of which the plaintiff complains are substantially true, then the defence of justification is made out. An example would be where if a newspaper began referring to a person as ‘Cheesy Toes’, imputing that the person had infected feet, a defence would be that the person had infected feet. 

Contextual Truth

The contextual truth defence has two elements. First it requires that the context in which the defamatory imputations appeared contained other imputations that were substantially true. Secondly, the defamatory imputations do no further harm to the plaintiff’s reputation because of the substantial truth of the contextual imputations (s26).

In the Caccavo case before the Tasmanian Supreme Court, the defendants raised the defence of contextual truth, stating that they had made factual assertions in several emails concerning the plaintiffs and their trade in live abalone to China, which included some issues with higher than normal mortality rates of shipped abalone. The defamatory imputation was that the plaintiffs had single handedly destroyed the live abalone trade in China for Tasmanian abalone farmers with their practices. The defendants asserted that there was sufficient contextual truth to other imputations around the actual practices of the plaintiffs businesses such that the plaintiffs’ reputations were not harmed by the alleged defamatory imputations. Although the case has been settled out of court it illustrates contextual truth: if the facts asserted necessarily lead to a negative assessment of a plaintiff, will defamatory imputations be absorbed as contextual truth because they can do no more harm than the facts?

Absolute Privilege

Absolute privilege and the publication of public documents cover parliamentary privilege, and court documents. Section 27 is absolute privilege, section 28 is the defence of publication of public documents.

Section 27 grants the defence of absolute privilege on certain occasions. Such occasions arise with the publication of documents in the course of the proceedings of a parliamentary body or an Australian court or tribunal. This might include where a parliamentary body, court or tribunal has ordered a document published or requested evidence be presented.

Publication of public documents provides a defence where the defamatory matter is contained in a public document or a fair summary of that document. To qualify as a public document, the document must fit the definitional criteria. A public document can be a report or paper of a parliamentary body, a judgment or determination of a court or tribunal, a record of votes, a document that is required to be published by the law of any country, or is required by parliamentary body. Other documents that qualify can be found at section 28(4).

Qualified Privilege

Qualified privilege (s30) requires that the plaintiff have published defamatory matter to a recipient where:

  • the recipient has an interest in having information on some subject; and
  • the matter is published in the course of providing that information; and
  • the conduct of the defendant was reasonable in the circumstances.

What will be taken into account in determining whether conduct was reasonable includes:

  • The extent to which the matter was of public interest; and
  • The seriousness of any defamatory imputation published; and
  • The nature of the business environment in which the defendant operates.

These are only three of the factors taken into account (s30(3)). The plaintiff can defeat such a defence if the plaintiff can establish that the publication was actuated by malice (s30(4)).

Honest Opinion

Honest opinion requires three primary matters to be proved by the defendant:

  • The matter was an expression of opinion of the defendant rather than a statement of fact; and
  • The opinion related to a matter of public interest; and
  • The opinion is based on proper material.

The defence is also available where the defendant is defending the opinion of an employee or agent (s31(2)), or where the defamatory matter published was the opinion of a third party (s31(3)). Proper material is material which is substantially true; or published on an occasion of absolute or qualified privilege (either under legislation or at common law); or was published on an occasion that attracted the protection of the defences of publication of public documents or fair report of proceedings of public concern (s31(5)).

Innocent Dissemination

The section 32 defence of innocent dissemination can be relied on where the defendant was a subordinate distributor. A subordinate distributor is someone who had no editorial control over the content of a publication, or was not the author or primary distributor (s32(2)). Examples of subordinate distributors include newsagents, electronic distributors, and librarians (s32(3)). The defence requires three factors to be present:

  • The defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and
  • The defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and
  • The defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

So, if the Gunston case was to be heard under the Defamation Act 2005, rather than the previous Act (as the defamation occurred before the enactment of the uniform legislation), the State Library, or a newsagent who regularly stocked and supplied The Mercury would qualify as a subordinate distributor.

Triviality

Triviality is a defence that can be raised where a defendant can establish that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm (s33). Triviality is a threshold test that considers the nature of the allegation rather than the size of the audience. An example would be a statement that failed to cause any damage to a person’s reputation, such as a magazine saying that a seven times married man ‘ran through women like a herd of hungry goats on an island’.

Remedies

There are two remedies for defamation under the Defamation Act, other than criminal prosecution under the Criminal Code:

  • an injunction to prevent publication;
  • damages after publication;

An offer of amends can be made as a means of early resolution, without recourse to a court settled dispute, and so has been dealt with as a separate area.

Injunction before Publication

An injunction before publication is difficult to obtain. It will not be given where the party who intends to publish the material indicates that it will justify the defamation, that is, can establish a defence for the assertions which are made and that it is for the public benefit that they be published. An applicant must demonstrate sufficient seriousness not definite harm. A court will consider the interests involved in granting or denying an application for an injunction.

Unless there is a real likelihood that the material will be further and more widely disseminated, an injunction after publication is virtually useless as a remedy. The damage has already been done.

Damages

The Defamation Act sets out several rules in relation to damages.

  • The damages must bear a rational relationship to the harm (s34). This is a matter for the court to decide, and so far there are no Tasmanian authorities on what this section means.
  • The damages for non-economic loss are limited (s35);
  • Exemplary or punitive damages cannot be awarded (s37); and
  • There are several factors in mitigation of damages (s38).

Exemplary or punitive damages were traditionally used to discourage defendants from engaging in similar conduct in the future. The new Defamation legislation abolishes this practice under section 37.

As to damages for non-economic loss, this addresses itself to such things as mental harm, or pain and suffering. The maximum damages amount is $250,000, an amount that is indexed from time to time according to the Australian Bureau of Statistics (s35(4)). A court may still order aggravated damages beyond maximum damages amount if the court is satisfied that the circumstances of the publication warrant such an award (s35(2)).

Mitigatory factors in relation to damages include (s38):

  • the defendant has made an apology, or
  • published a correction.

Section 38 also provides that it is a mitigatory factor where another publication has published matter having the same meaning or effect as the defamatory matter before the court and the plaintiff has already recovered damages, or begun an action for that purpose, or received or agreed to or received compensation (s38).

The court can take other matters into account in mitigating damages and is not limited by section 38.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.