Access to Justice: Understanding Defamation: This factsheet explains what defamation is, what defences are available, and what to do if you are concerned that you or your group might be sued.

The key points you need to be aware of are:

  • You or your group are entitled to express your opinion on developments and other activities that you think will harm the environment.
  • You do, however, need to be careful of what you say or write, as there are repercussions if you deliberately damage another person’s or a company’s reputation without good reason or justification.
  • Most defamation in Queensland is dealt with under legislation although general case law (decisions of judges) still applies.
  • There are several defences to defamation available which might protect you.

This factsheet is for general information purposes only, it is not legal advice. Important legal details have been omitted to provide a brief overview of this area of the law. For more detailed information on defamation in relation to public interest environmental matters, contact the EDO in Queensland or seek advice from a private solicitor.

1.       What is defamation?

Defamation is the ‘publication’ of ‘matter’ designed to convey a meaning ‘that is likely to likely to lead an ordinary reasonable person to think the less of the plaintiff’. [1]

‘Publication’ takes a broad definition and can include an oral utterance, or, words intended to be read either by sign or by touch, or, signs, signals, gestures, or visible representations.[2]

‘Matter’ has been defined to include:

  • (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and
  • (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication; and
  • (c) a letter, note or other writing; and
  • (d) a picture, gesture or oral utterance; and
  • (e) any other thing by means of which something may be communicated to a person.[3]

The Defamation Act does not define when material will be considered to be defamation, so we need to look at what case law has said. Generally speaking, material will be defamatory if it could:

  • injure the reputation of an individual by exposing them to ridicule, contempt or hatred;
  • cause people to shun the individual; or
  • lower the individual’s estimation by right thinking members of society generally.[4]

2.       What laws apply?

The Defamation Act 2005 (Qld) (Defamation Act) and the common law (i.e. decisions of Courts) together govern the law of defamation in Queensland, however other defamation laws in other jurisdictions may also apply. Section 11 of the Defamation Act determines where the claim should be brought and under what law. Defamation can occur in more than one location and can occur multiple times.

The High Court found that ordinarily the tort of defamation is located when a defamatory publication is comprehended by the reader, listener or observer. [5] With regard to internet publications, the High Court found that this means the place of downloading will the location of the offence. [6] Increasingly this means publication can take place on smart phone screens, tablets or computer screens anywhere in the world. Defamation is considered a ‘tort’ (a civil wrong, as opposed to, say, a crime). However, intentional defamation is also a crime under the Criminal Code Act 1899 (Qld), carrying a maximum of three year’s imprisonment.

When determining the jurisdiction in which the most damage has occurred, the Court may consider factors such as:

  • the place at the time of publication where the plaintiff was ordinarily resident [7] ;
  • the extent of publication in each Australian jurisdiction [8] ; and
  • the extent of harm caused in each Australian jurisdiction.

While the Defamation Act gives remedies to people who are “defamed”, it also acknowledges that there should not be “unreasonable limits” on individual and group rights to freedom of expression and on the discussion of matters in the public interest. [9]

3.       Proving defamation in court

Defamation is a tort of “strict liability” [10] , meaning the defence that no injury to reputation was intended and the author acted with reasonable care is not available to the author [11]. The responsibility of proving defamation lies with the person who thinks they have been defamed. In a court action, this person would be called the ‘plaintiff’. If certain elements (backed up by appropriate evidence) are satisfied, you may be liable to compensate the plaintiff for the damage caused to their reputation.

Generally speaking, for an action to be successful the plaintiff must prove:

  • the information was communicated by the defendant to a third person other than the plaintiff:
    • communication only to the plaintiff is not enough; and
    • communication to just one person other than the plaintiff is sufficient to prove this element;
  • the material identifies the plaintiff:
    • there is no need for the plaintiff to be expressly named – it is enough that the publication is made to persons with knowledge of other facts which would reasonably enable them to identify the plaintiff;
  • the information/material contains matter that is defamatory, regardless of whether the material was intentionally published or not; and
  • the plaintiff must be able to prove their reputation has been damaged by the defamatory material in the eyes of a reasonable person in the community.

4.       Defamation and social media

Defamation law distinguishes between primary (or intentional) publication, and subordinate (or inactive) publication. Broadly this means, the person who speaks or writes the original defamatory material is liable, but it also means social media administrators who control or assent to comments being posted may be liable for publishing defamatory material. [12]

Case law in Australia is open to the view that administrators of social networking sites may be held liable for the statements made by third parties. [13] Additionally, case law held a public transport department was responsible for “publishing” posters alleging plaintiff Mr Urbanchich was a Nazi war criminal when it failed to remove the posters after being made aware of the complaint. [14]

Defamation can occur in more than one location and can occur multiple times. In respect of the internet, this means the defamation action can be global, and that every page downloaded from the internet containing defamatory material may constitute a separate cause of action. [15]

5.       Who can be sued for defamation?

Any natural person or legal entity including local governments, companies and incorporated associations who contributed to the defamatory material can be sued for defamation.

This can include the broadcaster, the journalist, producer of the program, and editor of a newspaper or other publication, and any entity that reproduces the defamatory material, eg Google.

IMPORTANT!

Example: A legal entity such as an incorporated community group that issues a defamatory media release or social media post can be sued.

Example: An environmental activist who hands out a leaflet that contains defamatory material can be sued for defamation, as well as the author.

In Duffy vs Google [16] the South Australian Supreme Court found Google’s auto-complete results either published, republished or directed users toward comments that were harmful to Duffy’s reputation. As such Google was the publisher of defamatory material.

6.       Who can sue for defamation?

Generally speaking, any natural person can sue for defamation.

A corporation cannot sue in relation to the publication of defamatory matter about the corporation unless they fall into one of the categories below:[16]

  • not-for-profit corporations (that aren’t a public body); and
  • for-profit corporations that employ fewer than 10 people, that are not related to another corporation and aren’t a public body.[17]

7.       Defences to a defamation action

There are several defences available under the Defamation Act.[18] The defences most relevant to environmental and community groups are:

Justification: This defence applies if you can prove the defamatory material published is substantially true.[19]

Absolute privilege: Absolute protection against liability will apply to statements made in a court of law, and for speeches made by Members of Parliament in Parliament.[20]

Public documents: This defence will apply if it can be proved the defamatory material was contained in a public document. This includes, but is not limited to, reports by a parliamentary body, a judgment by a court, government documents and records open to the public.[21]

Fair report of proceedings of public concern: A person will have a defence if they prove the material was, or was contained in, a fair report of any proceedings of public concern.[22]  

Honest opinion: People are free to express an honest opinion[23] provided the matter was an expression of the defendant’s opinion (as opposed to a statement of fact); the opinion was a matter of public interest, and this opinion is based on proper material.[24]

IMPORTANT! In the matter Seafolly Pty Ltd v Madden[25], Ms Madden commenced a counter suit against swimwear manufacturer, Seafolly, for alleged defamatory imputations conveyed in a press release. Seafolly successfully defended the claim by proving the content was substantially true, however their argument that the content was “fair comment” was rejected as this defence only protects statements in the nature of comment and not of fact.

Freedom of political expression: The laws relating to defamation must be read subject to an implied freedom of political communication relating to publications concerning government and political matters. However the Federal Court has ruled that implied right to political expression is not an unfettered implied right.[25] Certain material that is fair and accurate, concerning matters of public interest, may be immune to defamatory proceedings. The defendant must not believe the publication was untrue, or made with malice.

8.       Time limitations

Generally speaking, under the Defamation Act an action must be brought within one year from the date of the publication of the defamatory material.[26]

9.       Checklist to avoid being sued for defamation

  Consider insurance so that you or your group (and other members) are covered if a defamation action is instigated. 
  Decide who your spokesperson on a particular issue is. Make sure everything that person says or writes on the issue is checked by the management committee or board of your organisation before it is publicly released or conveyed to a third party. 
  Publish a media policy for your group which identifies who may speak on behalf of the group. Individuals may express individual views, but they would not necessarily reflect the views of the group. When members join your group, provide a copy of the media policy to members. Publish the media policy on your website.
  If you have not identified a particular person, consider whether there is information in your publication or statement that implies reference to any one individual. For instance, if you make reference to “The manager” that is likely to be taken to be directed to a particular person.
  Try to get issues out into the public arena by a method protected from liability for defamation. For example, ask a Member of Parliament to ask questions in Parliament.
  Carefully check your facts (and sources for those facts) and give well informed opinions based on those facts. Your statements should reflect this. For example, “the report released last week suggests the proponent has not complied with XYZ…”
  Keep copies of all press releases, material on which it was based, and record where, to whom and when it was sent.

10.   Checklist if you are threatened with a defamation action

  If you receive a threatening letter do not panic. Write back immediately saying that you are obtaining legal advice and will respond formally within a defined period, for example two weeks after the date of the letter.
  Obtain legal advice from a solicitor or, for public interest environmental matters, contact the Environmental Defenders Office for advice on how you should respond.
  While obtaining legal advice, do not repeat the statement complained of in the public domain, or discuss the matter with other parties (e.g. journalists), as this might aggravate the situation. Of course you can talk to your lawyers.
  If your organisation is insured, check to see if your policy covers defamation actions against you or your group.
  After taking advice, if you think that you have defamed someone, consider making an ‘offer to make amends’ in an effort to settle the matter. The procedures required for an offer are outlined in sections 12 to 19 of the Defamation Act. NB: this process must be initiated within 28 days.
  Consider making an ‘apology’ in an effort to mitigate any damages you might be facing.[27] The person accusing you of defamation might also agree to withdraw Court proceedings against you if you agree to formally apologise.

References

  1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16(2009) 238 CLR 460 (‘Radio 2UE Sydney’) at [467].
  2. Defamation Act 2005 (Qld) s8(2) – this section does not exist in the Qld act
  3. Defamation Act 2005 (Qld) see Sch 5 and the definition of “matter”.
  4. Ref the English case of Sim v Stretch [1936] 2 All ER 1237 at 1240.
  5. Gutnick (2002) 210 CLR 575 at [44].
  6. bid.
  7. Defamation Act 2005 (Qld) s11(3)(a).
  8. Defamation Act 2005 (Qld) s11(3)(b).
  9. Defamation Act 2005 (Qld) s3.
  10. E Hulton & Co v Jones [1910] AC 20.
  11. Lee v Wilson & Mackinnon (1934) 51 CLR 276
  12. Webb v Bloch (1928) 41 CLR 331, 363–4.
  13. Von Marburg v Aldred & Anor [2015] VSC 467 at [71] This decision found that the argument that a Facebook administrator may satisfy the definition of “publisher” for the purposes of defamation was “not untenable”.
  14. Urbanchich v Drummoyne Municipal Council [2003] VSC 505.
  15. Dow Jones & Co Inc v Gutnick [2002] HCA 56.
  16. Defamation Act 2005 (Qld) s9.
  17. According to the Defamation Act 2005 (Qld) s9, a corporation includes: “any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body.” A Public body means “a local government body or other governmental or public authority constituted by or under a law of any country.” In determining the number of people a company employs, part-time employees are to be taken into account as an appropriate fraction of a full-time equivalent.
  18. See Defamation Act 2005 (Qld) Part 4, Division 2.
  19. Ibid s25.
  20. Ibid s27.
  21. Ibid s28.
  22. Ibid s 29.
  23. “Such an opinion has to be one that was reasonably open on the facts.” Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, per Gummow, Hayne and Heydon JJ at [18-20].
  24. Defamation Act 2005 (Qld) s31.
  25. Banerji v Bowles (A/Secretary, Dept of Immigration and Citizenship) [2013] FCCA 1052; BC201311780 at [1]
  26. Limitation of Actions Act 1974 (Qld) s10AA.
  27. Defamation Act 2005 (Qld) s38(1)(a).