Chapter 17
Perils of defamation
Introduction – the aims of this lecture
are to help you understand:
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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
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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:
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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