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4 Speaking Out in Public

Campaigners often operate in a highly stressed environment, with campaigns frequently being long-running and emotionally difficult. Amidst all this, it is important to be aware that some things that are said and written - even unintentionally - can result in you being sued for defamation. Defamation laws attempt to balance freedom of speech with the need to protect the reputation or privacy of individuals.

4.1 - Defamation
4.2 - Injurious Falsehood
4.3 - Sub Judice
4.4 - Sedition

4.1 Defamation

Each State and Territory of Australia has uniform defamation laws.1 These generally came into effect in 2006 around Australia. Publications and causes of action which have occurred and arisen before the new laws will still be subject to the previous legislation.2 The Act operates in conjunction with the common law which was established in this area.3

4.1.1 What is defamation?

Defamation is primarily a civil action where a person or entity seeks damages for loss of reputation from someone who has published defamatory material about them. There are three aspects to defamation - publication, identification; and defamatory meaning.

a) Publication

A publication is a communication by one person to at least one other person (other than the one defamed).4 A publication may be spoken, written or communicated in any form including television, radio, photograph, facial expression, drawing, letter, book, fax, e-mail or internet chat.5 It should be noted that cyberspace is not a law-free zone and internet defamation is treated as seriously as defamation in traditional forms.6

b) Identification

A publication will only be defamatory if it identifies one or more people. A person can be identified directly, by name or by photograph or other image. A person can also be identified even if he or she is not named, if someone else knowing the person could reasonably identify him or her. You cannot avoid liability for defamation by not naming the person about whom you are writing or speaking.

c) Defamatory meaning

Something - a media release, photo or radio interview - will be defamatory if it conveys a meaning which is likely either to:

lower the person's reputation in the eyes of ordinary reasonable members of the community,
lead people to ridicule, avoid or despise the person, or
disparage the person's reputation in business, trade or their profession.7

In terms of this element, it is important to note several things.

First , the meaning behind the publication can be implied as well as express. Much will depend on the context. Defamation may arise from the direct meaning of words used when taken on face value, through an innuendo from the statement itself, or from an innuendo based on known facts that are not included in the statement. For example, in one well known case a doctor successfully sued for defamation because a file photograph of him was used on the cover of a report on medical negligence.8 Likewise, if press coverage about a person is widespread, the courts are more likely to assume that the ordinary person has a greater knowledge of the facts.

Second , it is irrelevant whether a person intended to make a defamatory statement. The test is an objective one: whether or not a statement is defamatory is judged against contemporary community standards, from the point of view of a reasonable person.9

Third , the test is quite specific. Not all criticism or abuse is necessarily defamatory. The question is whether or not the 'ordinary' person would tend to form a significantly lower opinion of someone just because they are the subject of that criticism or abuse.10

Fourth , there is a common misconception that a person can avoid being defamatory by reporting something as an 'allegation' (which implies that it has not been substantiated). This is not always true. Statements couched as allegations can be defamatory, where the ordinary person is likely to conclude that there is some factual basis to the allegation. The one exception is for criminal proceedings. Merely stating that a person has been charged with an alleged offence will not be seen as a statement that the accused is guilty, as ordinary people are assumed to know that the law presumes innocence until guilt is proven.11 However, in every case, context is important.

Fifth , damage to reputation is presumed in Australia - that is, a plaintiff need not prove actual financial or other losses flowing from a defamatory publication.12

4.1.2 Who can be defamed?

Any person can claim the right to protect their reputation using the defamation laws, provided they are identified in a publication. Corporations cannot sue in defamation, unless they are an excluded corporation or sole corporations with less than ten employees.13

Government organisations, such as local governments and Aboriginal land councils, cannot sue for defamation. However, individual members of these organisations can still sue to defend their own reputations, if the defamatory statement points to them in particular.14

4.1.3 Who can be sued?

The writer or speaker of a statement can be sued for defamation. In addition, the broadcasting, television or newspaper corporation which publishes the statement; the person or journalist who wrote the material; a person being interviewed; a speaker in a talk-back program; the producer, executive producer or editor; and any other person who contributed in any way to the publication or authorised the making of the statement can also be sued, if their contribution can be identified. For example, you cannot avoid personal liability for defamation by making a statement on the letterhead of an incorporated association.

4.1.4 Defences

There are a number of defences available against defamation.

a) Truth and public interest

A defamation action will fail if it can be shown that the allegation complained of is substantially true.15 There is no longer a requirement that the matter should also be of public interest or public benefit. The removal of the public interest requirement may mean that sensational revelations about private conduct will be a more common occurrence. The defence reflects the defence of justification at common law.

The defendant has to prove that the matter is true. Defamation law presumes that the matter is false. This often leads to practical problems in proving the truth of a statement in court. You may, for example, need persuasive and authentic documents to prove this, or have witnesses who can and will give evidence of the truth of your statement.

b) Fair comment and honest opinion

At common law, there is a defence of fair comment to a claim for defamation. This is augmented by a similar statutory defence of honest opinion. These defences only apply if the matter represents an expression of opinion of the defendant (rather than a statement of fact) which is based on proper material.16 These defences are only available in relation to opinions regarding a matter of public interest.17

The statutory defence is specifically available in similar terms to an employee or agent of the defendant, or of a third party.18 However, this defence is not available if it can be shown that the matter did not represent the opinion of the defendant or that the defendant did not believe the employee, agent or third party honestly held the opinion.19

c) Absolute privilege

Publication of statements made in Parliament, parliamentary papers and certain court proceedings are subject to absolute privilege and, consequently, are immune from legal proceedings.20

However, a person reporting a defamatory statement made by a member of Parliament or by a witness in court does not have the protection of the maker's absolute privilege - just as the maker of the statement does not have the protection of absolute privilege if he or she repeats the statement outside the Parliament or the courtroom. A person reporting a defamatory statement made in Parliament or in court has a defence of qualified privilege for fair and accurate reports of proceedings. The reporter does not have a derivative of absolute privilege but rather has an independent qualified privilege.

The defence of absolute privilege extends to the publication of material that would be subject to absolute privilege under the corresponding law of another Australian jurisdiction.21

d) Qualified privilege

Under this defence, the defendant needs to prove three things. First, that the recipient has an interest or apparent interest in having information on some subject. Second, that publication of the information to the recipient occurred in the course of giving to the recipient that information. Third, that the defendant's conduct in publishing the matter was reasonable in the circumstances.22

The Defamation Act 2005 outlines various factors which a Court may take into account in determining whether a publisher has been reasonable in the circumstances, which largely mirror the factors relevant under the common law.23 The defence can be defeated by proving that the publication was done maliciously, as under the common law.24

There are, in New South Wales , four varieties of the defence of qualified privilege:

the defence of common law qualified privilege, which is founded upon the notion of reciprocity of duty between the publisher and the audience; 25
the defence of statutory qualified privilege under section 30 of the Defamation Act 2005 , which moves away from this reliance on reciprocity and is instead founded upon the notion of reasonableness of publication; 26
the defence of fair and accurate report of parliamentary and judicial proceedings. The reporter's qualified privilege is defeated by a lack of fairness or accuracy, or by the presence of malice; and
importantly, for environmental campaigning, the defence of Lange qualified privilege.

Broadly, the defence of Lange qualified privilege protects publications about governmental or political matters. The High Court decision in Lange 27 found that the common law is subject to the Commonwealth Constitution, with the effect that the defence of common law qualified privilege must expand to accommodate the implied freedom of political communication.28

An example of qualified privilege may be when a member of an environmental advisory committee established by local government tells the committee that an enforcement or assessment officer has a conflict of interest or has failed to carry out their responsibilities.

The justification for this defence is that in such cases the advantage of public knowledge is outweighed by any private injury resulting from the publication.

e) Fair report

This defence will be made out if the defendant proves that the matter published was a fair report of any proceedings of public concern.29 Such proceedings are broadly defined and include proceedings of the courts, Parliament, matters of adjudication before recreation or sport associations, and any public meetings held anywhere in Australia.30

Such a defence is defeated, in turn, where the plaintiff proves that the defamatory matter was not published honestly for the advancement of education or for information to the public.

f) Publication of public documents

This defence applies to the publication of defamatory matter if it can be proved that it was contained in a public document or a copy or summary of a public document or an extract from a public document.31 The defence can be defeated if the plaintiff proves that the defamatory matter was not published honestly for the advancement of education or the information of the public.32

g) Innocent dissemination

Newsagents, booksellers, libraries and certain service providers can usually take advantage of this defence.33 This defence can be claimed if they did not know or ought not to have known that the published material was defamatory.34

Campaigning groups may find themselves in similar situations if they regularly let other organisations put material in their bookshop, foyer or stand at the markets.

The person who claims defamation must prove that the parties 'ought to have known' that the material was defamatory for the defamation action to succeed.

h) Triviality

This defence is available where the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer any harm.35 This defence, however, rarely succeeds, as it is very difficult for a defendant to establish that its publication is unlikely to cause any harm at all.

i) Consent

Another defence to a defamation action may arise if the person claiming to have been defamed expressly or by implication consented to, assented to, acquiesced in or invited the defamation.36

j) Offer of amends

The Defamation Act 2005 provides that where a publisher receives a Concerns Notice (a notice in writing informing the publisher of alleged defamatory imputations), a publisher, can within 28 days make a written offer to make amends to the aggrieved person which can later be relied upon as a defence.37 There are important time limits and mechanisms involved in accessing this defence, so it is important to get advice or refer to the Act once a Concerns Notice is received.

4.1.5 Apologies, damages and restraining orders

Many defamation cases don't proceed and few go to trial. Corrections, rights of reply or an apology can often be negotiated as full settlement when defamation has occurred. If an apology is issued, the Defamation Act 2005 protects the publisher from express or implied admission of fault or liability.38

However, if the case does go to court, the main remedy available is monetary damages (even though this clearly isn't the most appropriate way to restore an injured person's reputation). The amount of damages awarded by a Court depends on whether there is an appropriate and rational relationship between the harm sustained by the plaintiff and the damages awarded.39

Damages are mainly awarded for injury to reputation (to both people and legal entities) and for hurt feelings (to people only). The Court must generally disregard the maliciousness or otherwise of the defendant at the time the matter was published when awarding damages.40

The fact that someone already has a poor reputation may be relevant. Although damage is assumed in defamation cases, it is possible to prove that someone's reputation was so poor that there has been no real damage. The judge will consider all the circumstances and make their own evaluation. There are no guidelines for awarding damages, so the results are often unpredictable. However, under the Defamation Act 2005 there are now factors that the court can take into consideration in mitigation of damages.41

The Defamation Act 2005 seeks to place a cap of $250,000 on general damages.42 A Court may also award damages for any actual economic losses caused by the publication of defamatory matter. These damages are not capped. A Court is also able to award aggravated damages.43 However, exemplary or punitive damages cannot be awarded. 44 The Court is able to award only a single sum of damages where there is more than one cause of action to assess.45

Injunctions (restraining orders) to stop the publication of allegedly defamatory material are rarely granted. Courts are reluctant to prevent freedom of speech on matters in the public interest.46 An action seeking an injunction must be based on evidence that without the injunction the plaintiff will suffer injury which an award of damages cannot adequately compensate.

4.1.6 Time limits regarding proceedings

The limitation period for defamation actions in the uniform scheme is one year.47 Time starts to run under the limitation period when the matter is published. This poses a problem for certain publications, such as internet archives. This is because defamation law in Australia proceeds on the basis of a 'multiple publication' rule, which has the effect of making the communication of defamatory matter to each recipient a separate cause of action. So, for example, if a defamatory article is stored in an online archive, a fresh cause of action arises, even if the article was written and uploaded, more than a year before it is accessed. Each time it is accessed, a fresh cause of action in defamation arises.48

4.1.7 Managing defamation risk

There are several things you can do to minimise the risks of having defamation action taken against you, based on an understanding of the basic principles set out above.

First, you should assess any draft press release, statement or document (including on the internet or via email) in light of these principles. Do you identify a person or particular people? Is the publication likely to damage their reputation?

Second, you should assess whether any defences apply, such as fair comment or qualified privilege. For example, can you substantiate any alleged facts and prove that the worst suggestion is both true and in the public interest?

Third, if possible, you should get independent legal advice on your draft before publishing it.

If you are threatened with defamation action, you should seek independent advice from either a lawyer or a law firm that specialises in defamation. Legal advice may be available for free or at reduced rates for public interest matters. If an action for defamation is a serious possibility, a prompt offer of an apology can often be the fairest, quickest and least expensive remedy.

Case-study: Bennette v Cohen

Speaking out in public without properly considering defamation issues can be costly, as Greens MLC, Ian Cohen, recently discovered. In two community meetings in April and May 2001 - to raise funds for a local resident's defence of defamation proceedings brought by developer, Jerry Bennette - Cohen called Bennette a thug, a bully and a person who improperly brings defamation proceedings for the purpose of stifling public protest. Cohen himself was sued for defamation by Bennette for these remarks. Eight years later, after two trips to the New South Wales Court of Appeal, an unsuccessful application for special leave to appeal to the High Court of Australia and a crippling bill for the legal costs of both sides amounting to over one million dollars [to be confirmed], Cohen was found to have defamed Bennette and was ordered to pay him $15,000 damages. It may have been possible for Cohen to have avoided being sued by simply talking about the facts rather than directly making statements which were damaging to Bennette's reputation. But, as discussed above, it is important to note that defamation can be implied as well as express.49

4.2 Injurious Falsehood

This tort applies where you maliciously make a false statement (by words or deeds) about a person or company to a third person, who acts on that statement to the detriment of the person or company. Conservation groups who make fraudulent or reckless statements about the business practices of corporations, with a view to moving customers and contractors away from the business, may fall within this category.

4.3 Sub Judice

The ambit of sub judice is often misunderstood.50The sub judice rule prohibits publications if they have a tendency to influence the outcomes of undecided legal proceedings, or prejudge the issues at stake in particular proceedings. The law does not, however, prevent discussion of all matters before the Court, so long as the comment does not prejudice proceedings. For example, you cannot publish statements about the guilt or innocence of the accused, 51 about their criminal record, or adverse comments which tend to criticise or disparage them, 52 nor can you publish accounts of witnesses in advance of a hearing.53 Yet you can publish statements that might influence a litigant in the conduct of an action, as long as the pressure you exert is not improper.54 An inaccurately stated fact or the use of offensive or insulting language will not necessarily breach the rule of sub judice, but might constitute defamation (see Defamation at 4.1 above).55

4.4 Sedition

There are numerous Commonwealth offences relating to sedition. These include urging:

the overthrow of the Government or Constitution by force or violence 56
interference by force or violence in parliamentary elections 57
the use of force or violence against other groups (as distinguished by race, religion, nationality or political opinion) 58
a person to assist the enemy or those engaged in armed hostilities with Australian soldiers.59

These offences carry a penalty of seven years' imprisonment.60

There is a defence of acting in good faith, which includes trying to show that heads of state, for example, are mistaken in their policies or actions or pointing out errors or defects in the government, Constitution, legislation or the courts.61 This defence does not extend to academic, artistic or journalistic expression.

Note: The Australian Law Reform Commission has conducted an inquiry into the effectiveness and appropriateness of the sedition laws.62 The Commission has recommended that the term 'sedition' should be removed from the federal statute book, and offences urging force or violence against the government or community groups should be redrafted.63 The Final Report was released in September 2006.64

On 12 August 2009, the Attorney-General released a Discussion Paper on proposed legislative reforms to Australia 's counter-terrorism and national security legislation.65Following the release of the Discussion Paper, in March 2010, the National Security Legislation Amendment Bill 2010 had three readings in the House of Representatives without amendment.66In introducing the Bill, the Government has accepted the recommendations of the ALRC, which included removing the term 'sedition' and replacing it with the phrase 'urging violence' and clarifying and modernising elements of the offence. The Bill also extends the offence to cover urging violence against a group or individual on the basis of national and ethnic origin in addition to race, religion, nationality or political opinion. At the time of publication, recommendations made by the Senate Legal and Constitutional Affairs Committee were being considered by the Attorney General.67

As of 26 April 2006
See for example Habib v Nationwide News Pty Limited [2006] NSWCA 14, where it was held that the new provisions of the 2005 Act will only apply to publications subsequent to 1 January 2006.
(NSW) Defamation Act 2005 s 24.
See Webb v Bloch (1928) 41 CLR 331; Dow Jones & Co. Inc. v Gutnick (2002) 210 CLR 575.
( NSW) Defamation Act 2005 , s. 4 "Definitions": under "matter".
See Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460.
Nixon v Slater and Gordon (2000) 175 ALR 15; (2000) Aust Torts Reports 81-565.
See E Hulton & Co v Jones [1910] AC 20.
See Farquhar v Bottom [1980] 2 NSWLR 380.
See Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 .
See (NSW) Defamation Act 2005 s 7(2).
(NSW) Defamation Act 2005 s 9 However, you may be liable for misleading or deceptive conduct and injurious falsehood in similar circumstances. There have been a number of cases in which the overlap between defamation, misleading or deceptive conduct and injurious falsehood have been considered, with some important implications for non-profit and community organisations. See, for example, Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (2002) 120 FCR 191.
See Ballina Shire Council v Ringland (1994) 33 NSWLR 680 and New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300.
(NSW) Defamation Act 2005 s 25: the defence of justification. See also Defamation Act 2005 s 26 regarding the defence of contextual truth.
This is typically material that is substantially true or privileged: (NSW) Defamation Act 2005 , ss. 31(1)(a) and (c).
(NSW) Defamation Act 2005 s 31(1)(b).
(NSW) Defamation Act 2005 ss. 31(2) and (3).
(NSW) Defamation Act 2005 s 31(4).
See (NSW) Defamation Act 2005 s 27
(NSW) Defamation Act 2005 s 27(2)(c).
(NSW) Defamation Act 2005 s 30(1).
(NSW) Defamation Act 2005 s 30(3). See Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and note that the NSW Court of Appeal refused to follow the more liberal view of the common law taken by the House of Lords in Reynolds .
(NSW) Defamation Act 2005 s 30(4). For discussion on malice, see Robert v Bass (2002) 212 CLR 1 at 30-33.
See, for example, Adam v Ward [ 1917] AC 309 .
See, for example, Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193; (2004) 78 ALJR 737.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Strictly speaking, the defence of Lange qualified privilege is not a separate defence, merely an expansion of an existing defence. However, it is useful to treat it separately, given that it relates specifically to publications about governmental and political matters. For recent, important decisions on the defence of Lange qualified privilege and the implied freedom of political communication, see Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; Coleman v Power [2004] HCA 39.
(NSW) Defamation Act 2005 s 29(1).
(NSW) Defamation Act 2005 s 29(4).
(NSW) Defamation Act 2005 s 28(1). The Act defines "public document" as including any paper or report published by Parliament, a Court or Tribunal determination or any record of other documents open to inspection by the public that is kept by an Australian jurisdiction or statutory authority: s 28(4).
(NSW) Defamation Act 2005 s 28(3).
(NSW) Defamation Act 2005 s 32(3).
See (NSW) Defamation Act 2005 ss 32(1) and (2) and Thompson v Australian Capital Television (1996) 186 CLR.
(NSW) Defamation Act 2005 s 33.
Monson v Tussauds [1894] 1 QB 671 at 691.
See (NSW) Defamation Act 2005 ss 13, 14, 15 and 18.
(NSW) Defamation Act 2005 s 20.
(NSW) Defamation Act 2005 s 34.
(NSW) Defamation Act 2005 s. 36.
(NSW) Defamation Act 2005 s 38(1). The list of factors is not exhaustive: s 38(2).
(NSW) Defamation Act 2005 s 35(1). This cap is indexed annually - as at 19 June 2009, the current cap is $294,500.
(NSW) Defamation Act 2005 s 35(2).
(NSW) Defamation Act 2005 s 37.
(NSW) Defamation Act 2005 s 39.
See Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57.
(NSW) Limitation Act 1969 s 14B . There is scope, in exceptional circumstances, for this limitation period to be extended to three years.
Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783 at 817-18.
The course of the proceedings can be followed through Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341; Bennette v Cohen (2007) Aust Torts Reports ¶81-897; [2007] NSWSC 739; Bennette v Cohen [2009] NSWCA 60; Bennette v Cohen (No 2) [2009] NSWCA 162.
The phrase "sub judice" means "under or before a judge or court".
Director of Public Prosecutions v Wran (1987) 86 FLR 92 at 101-102.
R v Saxon, Hadfield and Western Mail Ltd [1984] WAR 283.
Attorney-General (NSW) v Mirror Newspapers [1980] 1 NSWLR 374 at 387.
Harkianakis v Skalkos (1997) 42 NSWLR 22.
Harkianakis v Skalkos (1997) 42 NSWLR 22.
(CTH) Criminal Code Act 1995 s 80.2(1).
(CTH) Criminal Code Act 1995 s 80.2(3).
(CTH) Criminal Code Act 1995 s 80.2(5).
(CTH) Criminal Code Act 1995 s 80.2(7) and (8).
(CTH) Criminal Code Act 1995 s 80.2(1), (3), (5), (7) and (8).
Criminal Code Act 1995 s 80.3.
Australian Law Reform Commission, Media Release Sedition Laws Must Strike a Balance (2 March 2006) at http://www.alrc.gov.au/media/2006/mr1002.htm
Australian Law Reform Commission, Discussion Paper 71: Review of Sedition Laws. (Report released 29 May 2006). The Discussion Paper is available at http://www.alrc.gov.au/publications/recentpubs.htm
Australian Law Reform Commission, Report 104 : Fighting Words: A Review of Sedition Laws in Australia . (Report released 13 September 2006).
The Discussion Paper invited submissions on the Paper and an Exposure Draft Bill (see http://www.ag.gov.au/www/agd/agd.nsf/Page/Consultationsreformsandreviews_Nationalsecuritylegislation-Publicconsultation_Nationalsecuritylegislation-Publicconsultation).
The National Security Legislation Amendment Bill 2010 and Explanatory Memorandum can be found here
The Senate Legal and Constitutional Affairs Committee published its report and recommendations on 17 June 2010 which can be accessed here