What is Defamation?

What is defamation?

With the increasing prevalence and popularity of social media and internet based communications, it has never been more crucial to contain your inner keyboard warrior lest your words (and digital footprint) come back to haunt you in the form of a defamation claim. With email frequently the medium of choice with strata communities (be it between lot owners, committees, resident managers or body corporate managers), it is critical to exercise caution and courtesy in all communications – particularly since the body corporate records may include many of those emails.

Defamation is….

Defamation is generally a civil action for damage to a person’s reputation, caused by the written or spoken words of another person. Perhaps surprisingly to some, damage is not an element of defamation (although it may be the ultimate effect). Put simply, defamation is a civil wrong which:

• Arises out of a communication by a person (the publisher) to another person other thanthe person identified by the communication;
• Contains material from which defamatory meanings (imputations) stem; and
• Identifies (either by express reference or by implication) a natural person, a non-profit organisation, or a company with less than ten employees (and not related to another corporation).

The defamatory imputations may be apparent from the natural and ordinary meaning of the words (that is, the literal meaning), by reading between the lines (or what we call a false innuendo), or the literal meaning read in the context of other facts known to the recipient (a true innuendo). These imputations may expose the person to hatred, contempt, or ridicule, or lower their estimation in the minds of right thinking persons, causing them to think less of, or shun (avoid) them.

What defamation is not

To quash a few misconceptions, defamation notably:

• Does not require proof of actual loss or damage.
• Is no longer distinguished by the terms “libel” and “slander”.
• Is not the “pathway to riches” depicted by celebrity lawsuits.

Litigating defamation

Defamation has been operating inside a national framework since 1 January 2006 and in Queensland is governed by the Defamation Act 2005 (Qld) (the Act) alongside the common law. If you believe you have been defamed, the important things you need to consider before commencing court action include:

• Issuing a “Concerns Notice” which is a written notice outlining the defamatory statements and imputations, to whom those statements were published, and what remedy you are seeking.
• The response to that with any amends which may include an apology, correcting an error, offering to pay your legal costs, and compensation whether you accept or decline that offer.

Any proceedings must be commenced within one year from the date of publication, after which it is statute barred.

As always a key issue is whether there are valid defences and whether it is worth litigating commercially.

Compensating the hurt and embarrassment

While there is a real risk of making a defamatory remark whenever another person is the subject of discussion, it does not necessary lead to significant awards of damages. The courts do have the ability to (and in fact have in the past) awarded nominal damages of as little as $1.00 where no loss has been suffered but the complainant is ultimately vindicated by the judgment.

A recent New South Wales case invoking English precedent also indicates that the Courts are no longer prepared to allow proceedings to continue where the cost of doing so far outweighs the harm for which judgment is sought.

For all the bush lawyers out there the following cases may be of some interest:

• Where proceedings against Google were permanently stayed on the basis that the potential costs and outcome of continuing the proceeding were disproportionate to the resources required to determine the matter, with consideration that a judgment would not be enforceable against Google in the USA. Click hereto read more.
• Where a claim and cross-claim for a series of diatribes between a plaintiff body corporate chairperson and defendant body corporate committee member both failed, the court considering significant the “language of debate” and an absence of a “lack of good faith”. Click hereto read more.
• Where a plaintiff was originally awarded damages of $150,000.00 for being called some very unsavoury names, but was overturned by the Court of Appeal ordering a fresh trial. Click hereto read the original judgment and here for the appeal.
• Where, in an application to determine whether particular words were capable of conveying the pleaded defamatory imputations, Clive Palmer succeeded on only one of eight pleaded imputations. The proceeding is listed for a 10 day trial commencing 16 March 2015. Click hereto read more.
• Where a well-regarded teacher was awarded $85,000.00 in compensatory damages and $20,000.00 in aggravated damages for defamatory comments made on Facebook and Twitter by the son of another teacher. Click hereto read more.

What should you do if you are concerned about defamation?

Some practical tips:

1. Pause before you send that emotionally charged email / correspondence.
2. Sleep on it. If you still feel that the email / correspondence needs to be sent the following day, then…
   • Have a family member or colleague review the email / correspondence and give you an honest and critical view of whether it is potentially defamatory;
   • Ask yourself, “Does that email really need to be sent?”
   • What have you based the information in your email / correspondence on?  Is it truthful or your opinion and based on accurate, reliable material?  If you have a doubt, double-check your sources.
   • Do you really need to use the words you have used or can it be less inflammatory or (potentially) insulting? Consider re-wording the email / correspondence.

The above checklist is not a guarantee that your email / correspondence will not be defamatory, but will hopefully limit the possibility of proceedings being brought against you. If you are on the other side of the coin and think you have been defamed:

1. Has the correspondence been published to a person other than you?
2. Are you specifically mentioned in the correspondence? Or referred to by implication?
3. If your company is mentioned, does your company have less than 10 employees?
4. What meaning do you take from the publication?
5. Have a family member or colleague review the email / correspondence and give you an honest and critical view of whether it is potentially defamatory.
6. Sleep on responding to it immediately.

Strata communities and committee members may also wish to review whether their insurance policies cover liability for defamatory statements made by office bearers. Sometimes defamation can be excluded from cover.

Of course we can help if you need it.