defamation

Kim has an interesting post on the right to privacy over at LP and mentions defamation. Over the fold is the outline of the lecture of defamation I gave for the journalism course I taught last semester. This post should not be considered legal advice and if you are facing defamation proceedings or wish to instigate them, then I suggest you consult a lawyer. The authoratative text on this in Australia is Mark Pearson’s “The Journalist’s Guide to Media Law” (3rd ed, 2007).

Defamation
• Massive and complex!!!
• Two basic questions:
– Is the material I am about to publish defamatory?
– Is there a defence available?

• Definitions
• Legal history
• Identifying
• Defences

Defamation: Definitions 1
• Defamation law supposed to offer some solace to those who have had their reputations damaged
• Defamation is a tort – a civil wrong
• “A defamatory imputation is a statement or meaning – which can be either direct or an innuendo – which makes others think less of, or ridicule, a person, group, or organisation.” (411)
• Must refer to a legal entity (person or company)
• Distinction between transient form ‘slander’ (spoken) and permanent form ‘libel’ (published) abolished in 2006 reforms

Defamation: Legal History 1
• Historically, reputations sen as part of people’s spiritual being; hence, proceeding bough in ecclesiastical courts of the Church of England
• From 16th century, actions brought in common law courts (Morison & Sappideen 1989: 173)
• In Australia, defamation put into legislative form in the Defamation Act 1847 (NSW)
• Legislation reformed in 2006 to a uniform set of laws Defamation Act 2005 (except ACT and NT)

Defamation: Legal History 2
• Section 3 of Defamation Act 2005 sets out the objects of the reformed laws:
– To promote uniformity;
– To ensure defamation laws do not place ‘unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance’;
– To ‘provide effective and fair remedies for the persons whose reputations are harmed by the publication of defamatory matter’; and
– To ‘promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter’

Defamation: Definitions 2
• Section 4 of Defamation Act 2005:
– An article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and
– A program, report, report, advertisement or any other thing communicated by means of television, radio, the Internet or any other form of electronic communication; and
– A letter, note or other writing; and
– A picture, gesture or oral utterance; and
– Any other thing by means of which something may be communicated to a person
– Electronic communication includes a communication of information in the form of data, text, images or sound (or any combination of these) be means of guided or unguided electromagnetic energy, or both

Identifying Defamation: Ingredients
• Common law definitions taken three forms (Pearson 2007: 181):
– Exposes the victim to ‘hatred, contempt or ridicule’ (Parmiter’s case (1840) p. 342);
– ‘tend[s] to lower the plaintiff in the estimation of right-thinking members of society generally’ (Sim’s case (1936), p. 671);
– ‘cause[s] him [the plaintiff] to be shunned or avoided’ (Youssoupoff’s case (1934), p. 587)
• Is centred around the courts’ estimation of contemporary social and moral values
• ‘Third-person’ effect where some people would not think less of a homosexual, but that some ‘other’ people would

Identifying Defamation:
Words and Topics
• Common words that should make you pay closer attention to a story (Pearson 2007: 185):
– Sacked
– Terminated
– Dismissed
– Cheated
– Incompetent
– Fraud
– Insolvent
– Bankrupt
– Liquidation
– Convicted
– Failed
– Deceived
– Lied
– Stole
• Key topics that are likely to upset enough to prompt for defamation:
– Incompetence
– Unprofessional behaviour
– Negligence
– Misuse of position
– Misconduct
– Unethical behaviour
– Dishonesty
– Misrepresentation
– Theft
– Fraud
– Criminality
– Immorality
– Stigmas such as mental illness or appearance

Identifying Defamation: Tips
• If implying something negative or amusing about some person or company, state it openly and identify them fully, but make sure you have a defence available
• Don’t imply something defamatory
• Intention to defame is irrelevant only if you intended to publish
• Quoting another person does not protect you
• Internet versions of journalism products are different legal products from their other publications and need to be treated as such
• Much journalism produced is defamatory. The real key to publication is whether the defamatory material can be defended

Defamation: Defences 1
• Truth, two considerations
– The truth must be provable in court, requiring considerable evidence all which must be admissible. The court assumes the imputations are false, leaving the onus on the defendant.
– Prove the truth of any imputations that arrise from the statement
• Contextual truth
– Story contains several imputations and the media defendant can only prove the most serious one

Defamation: Defences 2
• Absolute Privilege
– Personally appearing as a witness in a court or before a parliamentary body
• Publication of public documents
– Actual document or a ‘ fair summary of, or a fair extract from, a public document’.
– Basic list: Parliamentary reports and papers; judgements and orders of civil courts; documents issued by councils and governments ‘for the information of the public’; and records of governments, courts and statuary authorities open to inspection by the public

Defamation: Defences 3
• Fair report
– Defamatory matter ‘was contained in a fair report of any proceedings of public concern’
– Normally parliament and courts, also include bodies or events relating to governments of other countries, inquiries held under the law, local government, law reform body, a public meeting of shareholders held anywhere in Australia, a public meeting held anywhere in Australia relating to public interest, including the advocacy or candidature of a person for public office

Defamation: Defences 4• Qualified privilege
– Situations where important material must be communicated, even though it may be defamatory (and the truth cannot be proved)
• Common law defence – necessary for the normal workings of society, particularly in the corporate and professional spheres
• Publisher must have a legal, social or moral duty to publish and the receiver must have a legal, social or moral duty to receive them

Defamation: Defences 5
• Statuary qualified privilege (section 30, subsection 3 of the Act):
– the extent to which the matter published is of public interest, and
– the extent to which the matter published relates to the performance of the public functions or activities of the person, and
– the seriousness of any defamatory imputation carried by the matter published, and
– the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
– whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
– the nature of the business environment in which the defendant operates, and
– the sources of the information in the matter published and the integrity of those sources, and
– whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
– any other steps taken to verify the information in the matter published, and
– any other circumstances that the court considers relevant.

Defamation: Defences 6
• Political qualified privilege:
– No need to establish duty-interest relation
– Might not need to prove the truth of a defamatory imputation made as part of a political discussion as long as:
• It was published in good faith
• The information appeared to be reliable
• Had been obtained from a person who had an apparent duty or interest in making the information available to the public
• Proper steps taken to verify the accuracy of the material
• They sought a response from the person defamed and published that response, unless they could show it was unnecessary or impractical to publish it

Defamation: Defences 7
• Honest opinion and fair comment
– Basic defence for all opinion and commentary in the news media
– Section 30, subsection 1, of the Act:
• 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