Defamation

Each Australian State has its own version of defamation laws but they are largely uniform. This article deals with the law in NSW, and captures the reforms made in 2020. Although the Defamation Amendment Act, 2020 has been passed by NSW parliament, at the time of writing it is still awaiting an official commencement date. Has someone made a defamatory statement against you or your small business? Seek legal advice as soon as possible as to what action can be taken . The first port of call is usually to send a cease and desist letter or a concerns notice which in the vast majority of cases usually solves the problem if it comes from a lawyer on their letterhead. If that doesn’t work, then you may be able to bring a claim for defamation.

Defamation Definition | You may be able to bring a defamation claim if:

  • At least one person (other than the person who is being defamed) has seen or heard the false information;
  • The person/people to whom the content is communicated would be able to identify that the false publication is about you or your business;
  • The information would cause an ordinary person, if they saw or heard the information, to think less of you or your business;
  • The false information has or is likely to cause you serious harm; and
  • There are no defences available.

Practical Considerations

1. In an ever-increasing online environment, there seem to be more people acting out aggression and hate online, falsely believing that they can do so with impunity. Keyboard warriors often don’t realise they are actually publishers and the law applies to them in the same way as it would to any well-known newspaper or TV station.

2. Once defamatory content is communicated to an audience, the damage is done. Even if that content is taken down, it is more than likely that viewers of that content have shared it, saved it or otherwise preserved that evidence.

3. Intention is irrelevant to determining whether content is defamatory. This means that a person who has made a defamatory comment can be liable even if that comment was made by mistake.

4. The limitation period for bringing a defamation claim in Australia is 1 year from the date of the comment or publication. Act fast.

5. The recent reforms have also introduced a single publication rule. In the online context, this means that the defamatory content is deemed to be published when it is first uploaded rather than each time it is downloaded by a viewer. The 1 year limitation period will therefore start to run from the first upload.

6. Pursuing or defending defamation proceedings in Court can be an extremely costly process and no matter who wins, both parties may end up out of pocket. To illustrate this point, a couple who had been involved in a neighbourhood dispute posted on Facebook that their neighbour was “known to police” and “may or may not be related to Satan”. The judge found that the conduct was defamatory, ruling in favour of the complainant and awarding him $14,000. Due to the drawn-out nature of the Court proceedings, the Defendants’ legal bill was over $80,000 and placed them in peril of bankruptcy. Check out the article here.

7. Ensuring privacy settings for social media pages are appropriate (private social media pages will lessen the scope of publication). Having clear internal policies and guidelines in place for your marketing and social media teams may also assist.

8. If you believe you or your small business has been defamed:

• Preserve the evidence such as taking a screenshot of the material as soon as you see it;
• Avoid getting in heated discussions and communications with the other party; and
• Seek legal advice from a defamation lawyer at Progressive Legal.

Although you might think this would be straightforward, this is indeed a very complicated area of Law and cases will literally turn on sometimes just one word being used. Each case needs to be very carefully considered.

What are the steps to bringing a claim?

1. Cease and Desist letter

If you are not too concerned about getting compensation and want to try a cost-effective method to stop the other side publishing further defamatory comments, a good first step is to have a lawyer send a cease and desist letter. This will put the offending party on notice that their conduct is against the law and that you are taking the matter seriously. Often a cease and desist letter sent by a lawyer will stop the offender from continuing their conduct.

2. Concerns Notice

Under the 2020 reforms to the defamation laws, parliament has made it mandatory for people who believe they have been defamed to issue a Concerns Notice before taking the other party to Court.

3. Attempt to settle

Litigation proceedings are a very costly exercise so if the aggrieved party and the offender are in communications, it is advisable to try to settle the matter before proceedings commence by sending a letter containing a settlement offer. Further attempts to settle the matter can also be made after proceedings commence.

4. Commencing Proceedings

Defamation proceedings are usually commenced in the Federal Court of Australia or a State Supreme Court. At the time of writing, filing a document to commence proceedings in the Federal Court would cost an individual $1,440 and in the Supreme Court of NSW would cost $1,160. The amount is significantly greater where the applicant is a Company. The usual remedy for a successful defamation case is an award of damages.

What should the aggrieved party include in a Concerns Notice?

A concerns notice must be in writing and must include the following details:

• Specifics of the location where the allegedly defamatory content can be accessed;
• A list of the negative imputations that the aggrieved person/business believes are being conveyed by the statement (to be the same as the imputations which will be put forward in the proceedings);
• Details of the reputational harm that the aggrieved person believes to have been caused or that is likely to arise;
• If the aggrieved party is a business, details of the serious financial loss likely to arise from the false publication.

The aggrieved party should provide this notice to the publisher together with a copy of the content in question.

After receiving the Concerns Notice, the offending party has 28 days in which to make an ‘Offer to Make Amends’ (or where the offender has requested further particulars, within 14 days from the provision of further particulars by the aggrieved party).

The offender’s ‘Offer to Make Amends’ must be open for acceptance for at least 28 days.

Defamation Defences

In this section we look at the flip side.

I have published content which may be defamatory to someone and am worried about being sued. Do I have a defence?

The first point of call is whether the content you have published is defamatory.

To be defamatory, the content must meet the following tests:

1. Was the material published to a third party? i.e. Were you involved in the publication of that material to somebody other than the complainant?

2. Does the material contain a defamatory imputation, by reference to the ordinary reasonable person?

3. Does the material which was published convey an imputation about the complainant?

4. Is the publication likely to cause serious harm to the reputation of the complainant?

If one of these elements cannot be proven, the complainant will find it difficult to bring a case for defamation.

If the conduct is in fact likely to be defamatory, you should consider whether any of the following defences may apply to you.

1. Truth (justification)

If you can prove that the comments you have made about the complainant are substantially true. Truth is a complete defence meaning that you don’t also have to prove that what you said is in the public interest.

2. Contextual Truth

If you can prove that the imputations arising from the words you have published are substantially true and that any other imputations (which may not be substantially true) do not further harm the reputation of the complainant.

3. Absolute Privilege (parliaments and courts)

This defence protects occasions where freedom of communication is vital. Therefore, where defamatory content is said or otherwise published during the course of parliamentary proceedings or as part of proceedings before an Australian Court or Tribunal, there is a complete defence to defamation.

4. Publication of Public Documents

If the matter complained of was originally contained in a public document or a fair extract of a public document (usually being a report or paper from a parliamentary body or Court).

5. Fair Report of Proceedings of Public Concern

If the matter was, or was contained in, a fair report of any proceedings of public concern. There are various public proceedings captured by the definition of ‘proceedings of public concern’.

6. Publication of matters concerning public interest

If you can prove that the matter which was published concerned an issue of public interest and you reasonably believed that publishing this matter was in the public interest. Before granting this defence, the Court may consider various issues including the seriousness of the defamatory imputations, the sources of information relied on, whether the matter distinguishes between facts and suspicions etc.

7. Qualified Privilege

If you can prove that the recipient of the published content has an interest or apparent interest in receiving information on some subject and your conduct in publishing that information has been reasonable in the circumstances. Again, the Court will consider a wide range of matters before determining whether this defence should apply.

8. Scientific or academic peer review

If the matter was published in a scientific or academic journal , relates to an academic issue, and an editor of the journal or another person with expertise in the subject matter carried out an independent review of the matter’s scientific or academic merit before publication.

9. Honest Opinion

If you can prove that the published matter was an expression of opinion rather than fact, related to a matter of public interest and was based on proper material (meaning that the material on which the opinion is based is described in general terms or otherwise accessible through a reference or link).

10. Innocent Dissemination

Innocent dissemination usually serves as a defence to ISPs, web platforms and other indirectly linked persons who have published content merely in the capacity of a subordinate distributor. If you fall into this category, you have to be able to prove that you neither knew, nor ought reasonably to have known, that the matter was defamatory (and that your lack of knowledge was not due to negligence).

Damages in Defamation

Damages awarded to successful complainants in recent Australian Court proceedings vary significantly. It is also worth noting, that it is possible to defame or ‘damage’ someone’s reputation that is not ‘exemplary’ (see Noone v Brown [2019] QDC 13).Where defamatory comments were posted on Facebook and Change.org about a high school principal, the Court only awarded the principal $6,000 in general damages from the conduct of two defendants. You can read this case here: Brose v Baluskas and others (No 6) [2020] QDC 15.  A similarly low amount of $9,600 was awarded to a plaintiff who sued for two posts on an internet site which claimed the plaintiff was trying to silence the internet and had instituted proceedings without merit Piscioneri v Whitaker [2017] ACTSC 174

Conversely, there have been several cases lately where plaintiffs have been awarded a substantial amount in what is called ‘aggravated damages’ for defamation. Aggravated damages tend to be awarded when in the circumstances of the case, the manner of the publisher’s wrongdoing is unjustifiable and lacking bona fides.

For example, in Stokes v Ragless [2017] SASC 159, aggravated damages of $20,000 were awarded. This was due to a failure to issue an apology and the defendant’s insistence that the accusation was truthful, despite a lack of evidence. Therefore, it is important to remember that defamatory statements can be worse if there are several of these published within a certain timeframe.

Cases which have succeeded in obtaining significant damages awards

$300,000

French v Fraser (No 3) [2015] NSWSC 1807

French was a customer manager at the Commonwealth Bank of Australia. For 2 years he suffered bullying and harassment from Fraser, the owner and author of ‘The Arbitrator’ website. Fraser made various imputations implicating French in various illegal business activities, and circulated these through ‘The Arbitrator’ website, via an email to 500 clients and on Facebook. French received $300,000 in aggravated damages.

$875,000

Webster v Brewer (No. 3) [2020] FCA 1343

This case involved an individual who ran a conspiracy theory Facebook page publishing various defamatory videos and comments about an Australia MP, her husband (who was a local GP in Mildura NSW) and their charity. The publisher did not participate in the Court proceedings, most likely because she had no defence to making the publications which the victims swore to be untrue and would be believed by vulnerable members of the community. The plaintiffs were awarded a total of $875,000 plus costs.

$3 million

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Australian actor, Geoffrey Rush won defamation proceedings against Nationwide News and one of its journalists for implicating him in the ‘me too’ movement and making various imputations about him being a pervert and engaging in sexual misconduct at work. He won on the evidence as allegations made by a fellow theatre actor were not made out in evidence (and therefore the publishers could not rely on the defence of truth). Rush was awarded almost $3 million in economic and non-economic loss.

$4 million

Wagner v Nine Network Australia [2019] QSC 284

Four individuals from the Wagner family were each awarded almost $1 million in damages, plus costs against the Nine Network and one of its journalists for defamatory imputations made against them in a 60 Minutes program. The Wagners had an earth moving business and the 60 minutes show accused them of causing a man-made disaster. The program “imputed that the disaster was the result of their failing to take steps that they should have to prevent a quarry wall on property they owned from collapsing, causing a devastating wall of water to engulf Grantham” which resulted in the death of 12 people.

CASE STUDY: Webster v Brewer (No 3) [2020] FCA 1343

Below we examine the case of Webster and how the Court justified the extent of damages awarded.

Facts and Findings

  • In September 2020, the Federal Court of Australia made orders for a sum of $875,000 to be paid to Nationals MP Anne Webster, her husband (a GP based in Mildura NSW) and her charity Zoe Support.
  • The case had been running in Court since May this year, when the Websters initiated defamation proceedings against Karen Brewer who published a series of content on her own Facebook page suggesting the Websters and their charity were involved in a secretive criminal network exploiting and sexually abusing children.
  • Between April and May, Ms Brewer published seven posts, being a combination of text and self-recorded videos, all of which the Court found to raise defamatory imputations against the Websters which were false and untrue.
  • The Websters were first granted urgent injunctions, with the Court restraining Ms Brewer from making the posts public and allowing the Websters to provide a copy of the Court Orders to any social media platform to have the posts removed.
  • During the proceedings, several witnesses attested to the integrity, decency and beneficial community involvement of the Websters.
  • Ms Brewer did not appear in Court and did not participate at any stage of the proceedings. Furthermore, the Court’s view was that her publications were “wholly indefensible”.
  • Justice Gleeson found that social media provided Ms Brewer with a platform where she could reach individuals who may believe her statements, noting that Ms Webster’s Facebook page had several thousands of followers. He also noted that the defamatory publications had spread into the Mildura community.
  • Justice Gleeson also raised concerns about the impact of the defamatory publications to Zoe Support which was set up by the Websters to provide support to vulnerable pregnant women and new mothers, stating: “Ms Brewer’s defamatory publications are designed to undermine the charitable objects of Zoe Support, to the potential detriment of some of the most disadvantaged people within its community.”

Reasons for award of aggravated damages

  • Generally, there is a cap on damages for economic loss which may be awarded in defamation proceedings. At the time of this case, that cap was $421,000.
  • The only instance that the cap can be exceeded is where the circumstances of the publication warrant an award of aggravated damages.
  • In assessing damages, the Court needs to ensure that “there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded” at [42]. The extent of the publications and the seriousness of the conduct are necessary considerations.
  • Non-economic damages in defamation proceedings can be granted to individuals for hurt feelings, loss of self-esteem and anxiety and feelings of outrage (although this will not be considered as a head of damage for businesses/exempted companies).
  • The Court may decide to award aggravate damages where the circumstances and the manner of the publisher’s wrongdoing justify the plaintiff being compensated for injury.
  • In this matter, the plaintiffs’ work depended on their honesty, integrity and respect within their community. The imputations made by Ms Brewer’s publications suggested “criminality and moral depravity” and were allegations of the most serious nature. The publications had no reason behind them and were vile in nature. The extent of publication also had a very wide reach to social media audiences and each publication had many ‘views’ and ‘shares’. The impact on the Webster’s was severe and the impact on their charity could effect its reputation and chance of receiving funding.
  • Taking into account the circumstances, aggravated damages were awarded due to the vicious nature of the conduct and the fact that Ms Brewer showed no willingness to apologise or stop the improper behaviour, and showed disregard for the court proceedings.

2020 Reforms

In August 2020, the NSW Parliament passed the Defamation Bill 2020 which bring about various reforms in Australian defamation law. Other Australian States have agreed to amend their respective defamation laws as soon as possible. Of note to the above discussion is the change in relation to the statutory cap on damages.

The amended legislation has confirmed that the statutory cap is the maximum amount payable for non-economic loss of the most serious kind. Less serious non-economic loss should be assessed on a sliding scale to be a lesser amount. Aggravated damages are now to be assessed and awarded separately. Therefore, an award for aggravated damages will not affect the amount of non-economic loss which can be awarded. It is a separate amount which serves the purpose of providing additional compensation for the plaintiff where the defendant’s conduct exacerbated the plaintiff’s loss.