This guide explains how environmental activists can be affected by the laws of defamation. Defamation actions relating to environmental protests are often called SLAPP suits (Strategic Litigation against Public Participation). The object of such suits is to intimidate those who participate in public debate and stifle opposition rather than to redress any supposed harm. SLAPP suits are often directed at people perceived to be organizing opposition, with the intention of having a silencing effect on wider public opposition.
What is Defamation?
Defamation describes the actionable wrong at common law or by statute that redresses loss or damage caused by injury to a person‟s reputation. Where a court finds the published matter to be defamatory it may award damages to vindicate the person‟s reputation and compensate for loss suffered because of the publication. The court may in some circumstances also place an injunction on the publication of the defamatory material.
Who can sue and be sued?
Individuals can sue in defamation for damage caused to them by defamatory publications. Individuals can also be sued for defamatory statements which cause injury to others‟ reputations.
Neither a class of persons, nor an individual as a member of a class of persons can sue in defamation for statements harming the reputation of that class, for example “all politicians are crooks”. An individual may sue for defamatory publications about a class if it may be reasonably be understood as referring to a particular individual or as an identifiable member of that class.
Governments and popularly elected local government authorities may not sue in defamation for defamatory publications concerning its governmental or administrative functions. However, councillors may sue for defamatory publications directed at them personally.
Corporations with more than ten employees are precluded from taking action.
Where and how are cases heard?
Actions for defamation in South Australia may be brought in the Supreme Court of South Australia, the District Court or the Magistrates Court. All civil actions for defamation are heard by the judge only, without a jury. The aggrieved person is called the plaintiff and the publisher of the defamatory material is called the defendant.
What must be proved?
The plaintiff must prove that:
- A defamatory statement regarding the plaintiff has been published (or made known to a third party); and
- That statement is of a kind likely to discredit the plaintiff‟s character or reputation in the eyes of a reasonable person. This might include innuendo, suggestion, or a situation where it is possible to “read between the lines” to arrive at a defamatory meaning.
What defences are there?
A statement is not considered to be defamatory if it is true, or substantially true, in substance and effect. A defence may also arise where the defamatory assertion is made within the context of truthful assertions. A defendant must prove the truth of the assertion in court, requiring evidence to substantiate its truth.
The basis of this defence is the right to free speech. Individuals have a right to engage in frank and open public discussion by freely expressing their opinion. Expressions of opinion on matters of public interest are protected provided they are fair. Public interest in free debate about matters of concern to all is seen as outweighing the need to protect a person‟s reputation. The courts have given this defence a wide application. To establish this defence it is necessary to show the opinion is fair and based upon proper material. The opinion must be honestly held and expressed on a matter of public interest. The defence will fail if it is shown that the comment is motivated by malice.
The defence of qualified privilege protects the publication of defamatory matter where the defendant has an interest or a duty “legal, social or moral”, to make the communication and the defendant proves that the recipient has, or defendant believes on reasonable grounds the recipient has, an interest in having the information which is the subject of the publication, and the conduct of the defendant in publishing the matter is reasonable. What is taken into account in determining whether the conduct of the defendant is reasonable includes: the extent to which the published matter is in the public interest; the extent to which the matter published relates to the performance of the public functions or activities of the plaintiff; the seriousness of any defamatory imputation carried by the matter published; and the sources of the information in the matter published. A defence of qualified privilege is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice. The recipients must have an interest in receiving it and no merely an interest or curiosity in the subject matter of the publication. Where the duty warrants wider publication the privilege will not be lost merely because some recipients did not have the requisite interest.
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
Some publications such as those issued by parliament or a court cannot be the subject of a defamation claim.
Publication of public documents
It is a defence if defamatory material is contained in a public document but is defeated if it is proven that the material was not published honestly for information to the public or educational purpose.
Proceedings of Public Concern
If material is contained in a fair report of proceedings of public concern then that is a defence. Proceedings covered include parliamentary bodies, courts, or a fair copy or summary from an extract of proceedings.
How can defamation actions be avoided?
- Avoid making sweeping statements and generalizations, particularly if you are not sure of the facts.
- Know your facts and report them correctly. Check your facts and report them correctly. Check your facts and don‟t misquote people.
- Know the difference between fact and opinion and be ready to raise it in court. Insert phrases such as “We firmly believe…” before the most damaging statements. If you are relying on certain undisputed facts, such as statements made or figures produced by the plaintiff, say “because of statements made by the [plaintiff] in its report, we firmly believe…”.
- Make it clear when your comments are in response to statements made by another person or company. A statutory qualified privilege defence can apply to such statements made in the course of public discussion.
- Fight the issue, not the personality. A plaintiff must establish that the defamatory statement was not made in good faith to combat your defence of fair comment. Personal attacks or insults on a person‟s motives or character look bad and might indicate malice in court.
- Try not to identify any particular person when making statements critical of companies or organisations.
The damages that a court may award to compensate a plaintiff include any amount in compensation of any economic harm suffered by the plaintiff, and a court may award damages for non-economic loss, not exceeding $259,500. A court may only award in excess of this sum for non-economic damages (i.e. hurt feelings) if the court considers the extent of the defamation warrants an award of aggravated damages. A plaintiff cannot be awarded exemplary or punitive damages for defamation. Some factors that the court may take into account which may mitigate the sum awarded to the plaintiff include:
- That the defendant has made an apology to the plaintiff;
- The defendant has published a correction of the defamatory matter; or
- The plaintiff has already recovered damages relating to a different defamation having the same meaning as the defamatory matter.
At the conclusion of the trial, the unsuccessful party may be ordered to pay some of the costs of the successful party. In deciding costs the court will take into account the way in which the parties to the proceedings conducted their cases (including any misuse of a party‟s superior financial position to hinder the early resolution of the proceedings), and any other matters the judge considers relevant. However costs don‟t simply follow the event so this may impact upon parties who face SLAPP suits.
The SA Defamation Act only applies to causes of action which occur on or after 1 January 2006. There is a time limit of twelve months from publication to bring an action .The common law ( judge made law ) will apply to any causes of action prior to that date. Under common law there is time limit of six years from the date of publication to bring an action.
The Environmental Defenders Office (SA) inc, (EDO) is a non-profit community legal centre offering free advice to individuals and groups on all matters of environmental law. The EDO operates an advisory on Thursday evenings between 6-8PM at: 408 King William St Adelaide SA 5000 Fax +61 (08) 8410 3855. Appointments are necessary and must be made by ringing 8410 3833 or freecall 1800 337 566. It is not a substitute for proper legal advice. Important legal details have been omitted to provide a brief overview of this law. Contact the EDO or your solicitor for more detailed legal advice about your specific problem. This guide was funded by a grant from the Law Foundation of South Australia.