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In this special additional chapter of The News Manual Online, we look at defamation in the Australian context. Much of the text is an abbreviated version of that in Chapter 69: Defamation -what you cannot do and Chapter 70: Defamation - what you can do, so you might want to read those first. This chapter, however, is more specific about the application of defamation laws in Australia.
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What is defamation?
At its simplest, defamation is to spread bad reports about someone which could do them harm.
The verb is to defame. You can defame someone if you say something false about them which spoils their good reputation, which makes people want to avoid them or which hurts them in their work or their profession.
To defame someone, you do not have to make up false things yourself. You might defame a person by repeating or replaying words spoken by someone else, for example an interviewee. It is no defence to claim that you were only quoting someone else. If you print or broadcast something defamatory, you could be taken to court, along with your producer, your editor or station manager and the person who said the words in the first place.
Before January 2006, defamation varied from state to state across Australia, but now there are Uniform Defamation Laws which are similar across all states and territories. The uniform laws adopted and adapted a number of statutory provisions from old laws but still retain the basic principles of common law, which traditionally defines defamation as:
The publication of any false imputation concerning a person, or a member of his family, whether living or dead, by which (a) the reputation of that person is likely to be injured or (b) he is likely to be injured in his profession or trade or (c) other persons are likely to be induced to shun, avoid, ridicule or despise him.
Publication of defamatory matter can be by (a) spoken words or audible sound or (b) words intended to be read by sight or touch or (c) signs, signals, gestures or visible representations, and must be done to a person other than the person defamed.
If a person thinks that you have defamed them and takes you to court, they have to prove that three of these things have happened:
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That the words were capable of a defamatory meaning as understood by ordinary members of society. Defamatory meaning could be anything which harms the person, in their reputation, their business or in the way other people treat them. The law does not say that the plaintiff must show actual proof of being harmed; it is enough that the false statement could have led to harm. See also Trviality below.
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That the words identify him as the person defamed. It is not necessary that he should have been specifically named. If he can show the court that a reasonable person would take the words to refer to him, he will probably have a good case. Groups of people (such as small companies or not for profit associations) can sue for defamation if they can demonstrate that the words identified them as a group.
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That the words or pictures have been published, that is heard or seen by a third person. The first person is the one talking or writing (you), the second person is the person being talked or written about (the plaintiff), the third person is anyone else who may hear or read the offending matter (such as a reader or listener). There is no civil defamation if the words, however bad or untrue, are spoken or written only to the person about whom they are made.
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Who can sue?
Under the old system of individual state laws, almost anyone or any organisation or company could bring an action for defamation. However, under the Uniform Defamation Law, corporations with 10 or more employees cannot sue. However, be warned that individuals or groups of individuals employed by or associated with that corporation - such as company directors, CEOs or managers - can still sue if they are identified by the publication.
And, although companies with 10 or more employees cannot sue for defamation, they might be able to bring a claim of injurious falsehood. This is when a false statement is published about a business’s goods or business that causes actual damage and is done with malice.
Not-for-profit organisations can still sue for defamation, no matter how many employees or members they have.
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Defences
It may seem that the laws of defamation are heavily against the media, but there are several defences which you can use to keep out of court or, if you are taken to court, to keep you from losing the case. Under the law, you as the publisher or broadcaster have to provide the evidence to support any of the following defences.
Truth
Truth (which is also called justification) is probably the best defence. Formerly in some states (such as NSW, Queensland, Tasmania and the ACT) truth was only a defence if you could prove that a ‘public interest’ was served by publishing the defamatory words. This requirement has been dropped from the Uniform Defamation Law and now there is a defence if the defendant can prove that the defamatory imputations are substantially true.
Public interest defence
A new defence of public interest was introduced by the Uniform Defamation Laws for cases where an article or broadcast was in the public interest (i.e. the public has a right to know) but it contained some errors, so it was not wholly truthful.
To use this defence, the publisher must show (a) the article concerned an issue of public interest; (b) they reasonably believed that publication of the matter was in the public interest.
The jury is responsible for deciding if the defence is established, taking into account factors such as the seriousness of the imputations, the integrity of the journalist's sources, the steps taken to verify the claims, and whether the story contained the plaintiff's version of events. All of these are simply good journalistic practice.
Privilege and protected reports
The law recognises that there are times when there has to be complete freedom of speech without any risk of claims for defamation. The two main examples are in parliaments and courts. MPs speaking in parliament or people speaking in court proceedings are protected from defamation by absolute privilege which means they cannot be sued whatever they say or whatever their motive for saying it. Your reports of such proceedings are usually protected by qualified privilege. Protection only usually applies as long as your report is honestly broadcast for the information of the public or the advancement of education and is reasonable. For example, does it distinguish between suspicions, allegations and proven facts?
Because common law does not protect freedom of speech in other situations, the uniform law has extended the protection of privilege to cover reports published reasonably of a whole host of public events, functions and bodies ranging from tribunals and commissions of inquiry to official documents kept as public records, such as Hansard or land titles. Reports published reasonably of meetings of local councils are usually protected, as are reports of public meetings dealing with matters of public interest.
The acts of each state contain Schedules of bodies and publications to which absolute privilege apply. In Victoria you can find the Act and Schedules at:
http://www.austlii.edu.au/au/legis/vic/consol_act/da200599.txt
The NSW Act is very similar at:
http://www.austlii.edu.au/cgi-bin/download.cgi/download/au/legis/nsw/consol_act/da200599.rtf
Replies to a public attack may also be protected by qualified privilege, as long as the reply is restricted to the specific matter of the original accusation.
Honest opinion
To use the defence of honest opinion you do not need to prove the truth of your comment. In some cases this is not possible, especially if it is an opinion rather than a fact. You only need to convince the judge or jury that your comments were your honestly-held opinion and that it was:
- clearly a matter of opinion and not a statement of fact and
- it related to a matter of public interest and
- it was based on ‘proper material’ (i.e. substantially true or based on privileged material)
The defence can be defeated if the plaintiff can prove that the opinion was not honestly held.
Political debate
Two rulings by the High Court introduced a new defence based on what the judges saw as an implied freedom of speech in the Constitution. The High Court decided (by a majority decision) that in order for democracy to work, we must be allowed to say defamatory things about people engaged in political debate without fear of being sued if they prove to be untrue.
The defence is similar to the so-called "public figure defence" available in the United States, but only applies in cases of genuine political discussions (which the High Court left lower courts to define) and it cannot be used to defame people simply because they are in the public eye.
The High Court in the Lange case further defined the conditions under which this defence can be used. It said the matter must be on a government or political issue, must not be motivated by malice (which we explain later) and publication must be reasonable. To prove reasonableness, you will have to prove:
- You had reasonable grounds for believing it was true,
- You took proper steps to check the accuracy of the material,
- Where practicable, you sought a response from the person defamed.
Innocent dissemination
Journalists occasionally defame someone without knowing or intending it. In such a situation, you might be able to use the defence of innocent dissemination (sometimes called unintentional defamation).
Ethically, broadcasters or publishers should be committed to correcting unintentional mistakes which might do someone harm so will probably issue a suitable correction and apology. Because publishing a correction and apology is admitting that you did defame the person concerned, you must always get advice from the your organisation's lawyers before doing it.
The Uniform Defamation Law has quite detailed provisions for settling defamation matters through mutual agreement between plaintiff and defendant, without having to resort to long and costly court cases. Your organisation's lawyers should be well informed of these provisions for a reasonable settlement. Consult them.
Triviality versus serious harm
It is a defence if the defendant can prove that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm.
The Uniform Defamation Laws clarified that the plaintiff has to demonstrate they have suffered "serious harm" from what was published. The seriousness of the defamatory material will, in future, be assessed by the trial judge before the case can proceed further in court. The case will fail is the judge is not satisfied that real, serious harm was suffered by the plaintiff.
The plaintiff agreed to publication
You cannot defame someone if they have given their consent for you to publish or broadcast the defamatory material. Consent usually means that they said: "Yes, you can use those words." This law stops people tricking journalists into publishing defamatory material so they can later sue. You may also have a defence if, having been told exactly what was to be said, the plaintiff made a statement explaining his side, and that statement was included in your report.
The matter has already been judged
It is a principle of common law that courts will not hear a second case based on the same complaint against the same defendant. If you have been cleared already, the plaintiff cannot have a second try using the same imputation. However, if you repeat the words again in broadcasts after court proceedings have started, this would be a separate publication and could result in another action. Beware also of repeat broadcasts; these will be counted separately and may offer a plaintiff a second chance of suing for defamation.
The plaintiff has died
An action for defamation is a personal action. Dead people cannot sue for defamation; neither can an action begun by a plaintiff be continued by his children or family if he dies before the case comes to court. The action dies with him.
There is, however, provision for the relatives of a dead person to sue for defamation on their own behalf if they are defamed by what you say about their dead relative. For more on this, go to Chapter 69: Defamation - what you cannot do.
The statute of limitations has expired
The Uniform Defamation Law requires that a plaintiff must commence proceedings for defamation within a year of the first publication or broadcast. However, courts may extend this to up to three years if the plaintiff can demonstrate there were good reasons why they could not start the action within a year.
Apologies and resolution of civil disputes without litigation
These are not, strictly speaking, defences. However, as mentioned earlier, the law lays down some quite specific mechanisms by which apologies can be accepted and complaints about defamation can be resolved without resorting to the courts. This is, of course, a matter for your newspaper or broadcasting company to decide and therefore you should obtain legal advice before such a course of action is started.
Serious harm
For many years, all a plaintiff had to prove was that the imputation against them had harmed their reputation, injured their livelihood or ridiculed them. More recently, however, various legal jurisdictions have inserted a requirement that the plaintiff must demonstrate it was “serious harm”. UK courts have been using this provision since 2013, while in Australian courts in New South Wales and Victoria since 1 July 2021 have required the plaintiff’s case to pass the “serious harm” test. This was demonstrated in respect to a defamation on social media when an Australian minister Peter Dutton was awarded relatively small damages for a Tweet accusing him of being a “rape apologist”. While the judge acknowledged the words were defamatory, he also said they were not read by many people and could have been dealt with in a lower court. Commentators said that if the case had been brought after 1 July 2021 when the “serious harm” provision became effective, Dutton might not have won at all.
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Malice
One final warning about the legal concept of malice:
To use the defences above you must usually show that publication was made "in good faith, without ill-will". Ill-will is usually referred to in law as malice, and includes any dishonest or improper motive. For example, to broadcast a critical comment to get revenge would be seen as malice. If the court decides that you acted with malice, you will lose your defence and could face a charge of criminal defamation, which can be punished by a fine or imprisonment.
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How is defamation punished?
Defamation is usually a civil offence, although it can be a criminal matter under special circumstances.
Civil defamation
Most complaints of defamation are dealt with under civil law. That means that cases go to a civil court and are punished by awarding money (called damages) against the person found to have committed the offence. In civil defamation, the principle is the same as for someone who has been physically injured as a result of someone else's actions, either through carelessness or a planned attack.
Under the uniform law, it is usual for juries to determine whether defamation took place and whether the publisher or broadcaster has a defence. If defamation is proved and there is no acceptable defence, the judge will decide how much harm has been done and express that in the amount of damages they award. There are several kinds of damages:
- General or compensatory damages, which a court may award for a person's loss of reputation, shame or hurt feelings. Under common law, once the court has found that he has been defamed, the plaintiff does not have to prove that actual harm has been done. General damages do not have to be large sums of money. If a judge or jury finds that you have defamed the plaintiff but that no real harm has been done, the plaintiff may be awarded nominal damages of a few dollars. Nominal damages may also be awarded if the court feels that you have been only slightly at fault or that the plaintiff was in some way responsible for the defamation in the first place.
- Special damages compensate for any loss of business or earnings the plaintiff may have suffered as a result of the defamation. These could also include any money the plaintiff has spent as a result of the defamation, for example in sending letters to clients denying the allegations.
- Aggravated damages can be awarded if the court thinks that the defamation was deliberate, possibly out of ill-will or any other improper motive (usually referred to as malice, which we discussed earlier). For example, if you knew that what you were publishing was false and defamatory, but went ahead with the story to stir up a scandal and boost readership or listener numbers, the court would probably award aggravated damages against you. They may also award aggravated damages if the defamation was said in a particularly nasty way.
Damages are usually large in the case of media organisations because the courts think that they can pay more for their mistakes than individuals can.
As in any court case, the judge may also award costs against you if you lose (or against the plaintiff if they lose), or simply say that each side should pay their own costs of the case.
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Further reading
For more details on how Australian Defamation Laws are applied, you can find valuable information at: http://www.australian-defamation-lawyers.com.au/, including a summary of changes under the Uniform Defamation Law.
An excellent legal resource for Australians is 'The Journalist's Guide to Media Law: A handbook for communicators in a digital world' by Mark Pearson and Mark Polden, the Sixth Edition, published in hard copy and as an ebook in 2019 and 2020 by Routledge. Of great practical value are the “Tips for Mindful Practice” and “In a Nutshell” sections at the end of each of the two chapters on defamation.
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