Defamation

Contributed by ShelleyEder and current to 1 May 2016

The tort of defamation focuses on damage to reputation and in the Northern Territory is covered by the Defamation Act 2006 (NT) ('Defamation Act'). The Defamation Act is designed to encourage parties to resolve their disputes at an early stage, rather than proceed to litigation.

Defamation actions tend to be time consuming, expensive and lengthy. In addition, court appearances and reliving hurtful events may be stressful. An unsuccessful litigant or a partially successful litigant will usually be liable for the other parties' legal costs. Legal costs of litigation will often exceed the amount of compensation awarded even if the plaintiff succeeds. For these reasons, litigation should only be commenced after careful thought and expert legal advice.

In the NT defamation is governed primarily by the common law which has been modified by the Defamation Act. The four objectives of this Act are:

• to promote uniformity between defamation law in the NT and the other Australian States and Territories
• to ensure the law of defamation does not place unreasonable limits on freedom of expression
• to provide effective and fair remedies for persons whose reputations are harmed by defamation
• to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matters (Defamation Act s2(a), s2(b)).

The limitation period for an action for defamation is 12 months from the date of publication as per the Limitation Act (NT) s12(2)(b).

Who can bring a defamation action?

An individual or body must have legal personality to bring an action for defamation. In the Northern Territory the following may sue:

• Individuals
• Corporations with fewer than 10 employees (Defamation Act s8).
• Not for profit organisations (Defamation Act s10).

An action in defamation cannot be sustained after the plaintiff has died (Defamation Act s9).

Where are cases heard?

In the Northern Territory actions in defamation may be commenced and heard in either the Local Court or the Supreme Court, depending on the amount of damages claimed.

What is defamation?

The tort of defamation is designed to protect a person's reputation. In a court action the plaintiff would need to prove the following elements:

• Material has been published (see Publication below)
• That identifies the plaintiff (see Identification below)
• That is harmful to the plaintiff's reputation (see What does it mean to harm a person's reputation?).

Defamation is actionable per se and the plaintiff does not have to prove that they have suffered any financial or other damage. Of course if they can prove this then they could claim additional compensation for these losses.

If the plaintiff can prove the elements above, then the onus would shift to the defence to prove any of the defences (see Defences).

What does it mean to harm a person's reputation?

At law, all people are presumed to have a good reputation unless facts are proven in court to show that this should not be the case. Although there is no definitive legal definition of what a defamatory statement is, the following provides some legally accepted definitions that have been used by the courts:

• material which would 'tend to lower the plaintiff in the estimation of right-thinking members of society generally' Sim v Stretch [1936] 2 All ER 1237
• 'false statement about a man to his discredit': Scott v Sampson [1882] UKLawRpKQB 32; [1882] 8 QBD 491
• 'matter is defamatory if it tends to make a plaintiff shunned and avoided' Youssoupoff v Metro-Goldwyn- Mayer Pictures Ltd (1934) 50 TLR 581
• 'in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him' Boyd v Mirror Newspapers [1980] 2 NSWLR 449
• 'That a statement or other representation has been made of a kind likely to lead ordinary decent folk to think the less of the person about whom it is made' Consolidated Trust Co Ltd v Browne (1948) 49 SA (NSW) 86

Material can also be defamatory if it exposes a person to ridicule, Ettingshausen v Australian Consolidated Press (1991) 23 NSWLR 443 or if it is disparaging of a person's professional reputation, Drummond-Jackson v British Medical Association [1970] 1 All ER 1094.

Defamation protects reputation not pride. It is not enough for a person to show that they have been abused in some way. Mere 'scurrilous abuse', such as yelling out '[y]ou are a bloody infamous thief!' is not defamatory: Hodgson v Bulpit (1880) 6 VLR (L) 400. But while obscenities, vulgarities and other verbal abuse will not, of themselves, constitute defamation, the line is fine; it has been held that a journalist describing a film director as 'hideously ugly' was defamatory because the comment gave the impression that the film director was not merely physically distasteful but actually an abhorrent person: Berkoff v Burchill [1996] EWCA Civ 564; [1996] 4 All ER 1008. Thus, whether a remark is defamatory will depend on such factors as the context in which it is made and to whom it is said.

The meaning of the publication is determined by the court by applying the 'ordinary reasonable reader' test. The question is, what would the ordinary reader (or viewer or listener) infer from the publication? (See for example Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 or Farquhar v Bottom [1980] 2 NSWLR 385). The publication needs to be considered in it's entire context, not just part of it (Charleston v News Group Newspapers [1995] UKHL 6; [1995] 2 All ER 313). So, for example, a defamatory headline will not of itself be defamatory if the article that follows is not; although if it is the front page and there are many publications of just the headline alone, with no explaining article, then the publications of the sole headline may be defamatory (*Hockey v Fairfax* Media Publications Pty Limited [2015] FCA 652).

Defamation may sometimes be communicated only to a select group of people who have knowledge of a special extrinsic fact. This is called 'true innuendo'. An example of this is clearly demonstrated by a case that was brought at the turn of the century. A newspaper article printed the false claim that the plaintiff had just given birth to twins. This was not of itself defamatory, however it was to the select group of people who knew that the plaintiff had only been married weeks before [Morrison v Richie [1902] 4 Fraser Sess, Cas, 645].

Identification

In any court action, the person alleging defamation will have to demonstrate that the material identifies them. In many cases this is very easy to establish, as the person will have been referred to by name, or a photo of them published. Even if the publisher did not intend to identify the person, they may have still been inadvertently identified.

A good example of this principle can be seen in the case of Lee v Wilson [1934] HCA 60; (1934) 51 CLR 276. In that case a newspaper article in Victoria referred to a corrupt Detective Lee. At the time there were three police officers with the name 'Lee' in Victoria. The court held that the article had potentially identified all of them.

It is not generally sufficient if the person is referred to as a member of a group (eg all lawyers are thieves) unless that group is a very small and identifiable group (eg ministers of the Queensland Parliament) (Bjelke-Peterson v Warburton [1987] 2 Qd R 465).

A person might also be identified by unique facts, like their job title (eg manager of a specific company), address, family relationships or other characteristics.

Material that seems defamatory is not actionable unless it can be established that the material in question refers to a particular person. Showing footage of a person's house or place of business as the background to a story may be sufficient to give rise to the imputation that the story is about them (Henry v TVW Enterprises Ltd (1990) 3 WAR 474).

Publication of matter

What constitutes publication?

Publication basically means the imputation was communicated to a third party (other than the plaintiff and the defendant) Pullman v Walter Hill & Co Ltd [1890] UKLawRpKQB 193; [1891] 1 QB 524. Publication to a single individual will suffice, Grappelli v Derek Block (Holdings) Ltd [1981] 2 All ER 272 although obviously the scope of the publication would be considered in the award of any compensation.

If the matter relates to a true innuendo (see above) the plaintiff must prove that the matter was communicated to at least one person who has knowledge of the special extrinsic fact/s.

What is 'matter'?

Matter is defined very broadly in the Defamation Act s3 as including:

(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.

Who may be liable for a publication?

Anyone who is involved in the publication, or even distribution of material may be liable, including corporations, employees and members of the public repeating defamatory statements. An action may not be maintained against a person who is deceased (Defamation Act s9). Defences may apply in some situations (see Defences).

Repetition

It is not a defence to an action in defamation to say that you are merely repeating the words of another. Every republication of a libel is a new libel, and each publisher is answerable for his act to that same extent as if the calumny originated with him: Truth (NZ) Ltd v Holloway [1960] WKR 997 at 1002, see also McCauley v John Fairfax & Sons Ltd [1933] NSWStRp 65; (1933) 34 SR (NSW) 339. Thus the plaintiff will often sue both the originator as well as other parties who repeat the material: Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6.

A publisher can also be made liable for the 'natural and proximate' consequences of the original publication. Thus, in the case of Sims v Wran [1984] 1 NSWLR 317, a politician was held liable for repetitions in the media, for statements he made during a press conference.

Publication on the internet

Publication over the internet is the same under the law as any other kind of publication. A complicating issue is when the internet publication has been generated overseas. If the publication relates to a person who lives in Australia then that person may be able to successfully argue that Australian law should apply to the publication, although issues about choice of law can be complicated (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575).

People posting on social media need to be aware that the law of defamation applies to them. There have been a number of cases in Australia where a person has successfully sued an individual in regards to their social media posts (eg, Mickle v Farley [2013] NSWDC 295, Dabrowski v Greeuw [2014] WADC 175, Polias v Ryall & Ors [2014] NSWDC 1692).

Liability of search engines and ISP providers

Under the Broadcasting Services Act 1992 (Cth) Schedule 5 s91(1), an Australian ISP or content host cannot be held liable for content of which it was not aware. Under defamation law, the defence of innocent dissemination would also apply (see innocent dissemination below). An issue of liability may arise, however, where the company has been notified of the defamatory material and failed to take it down within a reasonable time frame.

Case study

In Trkulja v Google Inc [2012] VSC 533, the plaintiff had been photographed with famous criminal figures, under the headline 'Melbourne Crime'. This article appeared with a Google search of his name. The plaintiff wrote to Google and notified them of the offending article. Google was held liable for the publication after he had notified them, but not liable for any publication prior to that date.

Defences

In litigation, once the plaintiff has established that defamation has occurred, the onus shifts to the defendant to prove any defences. The Defamation Act covers a number of such defences which operate in conjunction with common law defences (Defamation Act s21(1)). Some of the defences are related and may be argued simultaneously.

Triviality

It is a defence to the publication of defamatory material if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm (Defamation Act s10). This is a high test to meet and refers to unlikelihood of any harm at all, rather than just a small amount of harm. (Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614).

Justification/truth

This defence will apply where the defendant proves that the defamatory meaning is true or substantially true (Defamation Act s22). The rules of evidence will apply if the defendant is trying to establish this defence in court.

Truth refers to the substance of the defamation, rather than the accuracy of all stated facts. For example, if a newspaper article stated that a person had robbed Bank X when in reality they had robbed Bank Y, the defendant could still rely on justification, because the imputation that the person has robbed a bank can be proved substantially true.

If a publication makes a number of defamatory allegations, the defendant must prove the truth of each in order for this defence to completely succeed. If only some of the allegations are proven true it may result in a lower compensation award for the plaintiff.

Contextual truth

Similar to the defence of justification, the rationale for this defence is that the publication does no further harm to the plaintiff's reputation. It arises in case where:

a) the publication contains more than one defamatory imputation

b) the defendant succeeds in proving the truth of at least one of the imputations

c) (usually because of the seriousness of the proven imputation) the unproven imputation does no further damage to the plaintiff's reputation.

Case Study

A well-known author had publicly admitted on a number of occasions that he was a holocaust denier, therefore already having a very damaged reputation. The court held that it would do no further harm to his reputation to say that he was a bad historian, even if the latter could not be proven: Irving v Penguin Books Ltd [2000] EWHC QB 115.

Publication of public documents

This defence is covered in the Defamation Act at s25. Generally it will be a defence if the publication can be shown to be a repetition, summary or fair report of information contained in a public document. The documents classified as 'public documents' for this purpose are listed in the Defamation Act s25(4) and include court judgments, reports tabled in Parliament and documents open for public inspection.

If the publisher does embellish or significantly change the document they risk losing the privilege: Lewincamp v ACP Magazines Ltd [2008] ACTSC 69. Minor inaccuracies will not defeat the defence - substantial accuracy is enough.

The Defamation Act s25(3) states that this defence can be defeated '...if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.'

Fair report of proceedings of public concerns

This defence is covered in the Defamation Act at s26. It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of proceedings of public concern.

In order to prove this defence the defendant must show that the matter was contained in an earlier published report. A report of proceedings of public concern is defined in s26 in very broad terms and includes things like reports of parliamentary proceedings, reports of public meetings and conferences of learned societies and shareholder meetings. The publication needs to be contained in a fair report of proceedings in question. The Defamation Act s26(3) states that this defence can be defeated '...if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.'

Fair comment/honest opinion

This is a defence under both common law and the Defamation Act [s28]. The defence seeks to protect a person's right to freely express their opinions on matters of public interest or issues in the public domain. This is one of the ways the law seeks to protect freedom of speech within the law of defamation.

The words 'in the public interest' have been interpreted broadly by the courts and may include things like reviews (restaurant, hotel, entertainment etc.), opinions about the public conduct of public figures, character of public and court officials or performance of people who hold public positions (Eg Gardiner v John Fairfax and Sons [1942] NSWStRp 16; (1942) 42 SR (NSW) 171).

Under the Defamation Act [s28(1)] the opinion expressed needs to be based on proper material. An opinion will be based on proper material if that material is substantially true or published on an occasion of absolute or qualified privilege: Australian Broadcasting Corp v Comalco Ltd [1986] FCA 300; (1986) 12 FCR 510

The defence covers statements of opinion only, as opposed to statements of fact. Thus, a defamatory statement that a person had committed a crime would not be covered, but a statement that a person was not very good at their job (the story was a result of 'lazy journalism') may be: Carleton v Australian Broadcasting Corporation [2002] ACTSC 127; (2002) 172 FLR 398.

The fairness of the comment refers to whether or not it is honestly held by the defendant. Similarly with honest opinion, it is not necessary to prove the comment is reasonable or rationale. Indeed, it could be 'wrong-headed or ill-informed', as long as the opinion is one that a fair minded person could honestly express the opinion on the proved facts: French v Triple M Melbourne Pty Ltd [2008] VSC 553

This defence will be defeated if the plaintiff can prove malice, or that the expressed comments were not honestly held by the person expressing them (see Defamation Act s28(4)).

Innocent dissemination

The defence of innocent dissemination protects those involved in the publication of material who have no knowledge or control over the content. It is covered by s29 of the Defamation Act.

It will apply if the defendant can prove that they published merely in the capacity, or as an employee or agent, of a subordinate distributor AND that they neither knew nor ought reasonably to have known that the matter was defamatory and that the lack of knowledge was not due to their own negligence [s29].

This defence covers entities such as booksellers and newsagents, libraries, live broadcasters, search engines and ISPs and their employees. The defence requires that the publisher be 'innocent', and therefore where the plaintiff has notified the publisher of the defamatory content, or the publisher has been made aware by some other means, the defence will not be available (e.g. Trkulja v Google Inc [2012] VSC 533).

Absolute privilege

In some situations there is complete immunity from liability for defamation. These are occasions in which the law recognises that there needs to be complete freedom of communication. The emphasis here is on the circumstances of the communication rather than the subject matter. The following situations are covered by absolute privilege:

• Communication in the course of parliamentary proceedings (otherwise known as parliamentary privilege). This applies only to proceedings before the House, while the House is in session and any communication outside the scope of this (eg a press interview outside the house or a conversation when parliament is not in session) will not be covered by the privilege.
• Communication in the course of court or tribunal proceedings. Judges, lawyers, parties and anyone giving evidence while a court, tribunal or royal commission is in session is covered by the privilege.
• Communication between lawyers and their clients. As long as the communication is related to the professional relationship, rather than idle gossip: More v Weaver [1928] 2 KB.
• Communications between executives of High Office, for example Ministers of the Crown or Heads of State.
• Communication between husband and wife.

There is no way to defeat this defence if the defendant proves the communication was on an occasion of absolute privilege.

Qualified privilege

Qualified privilege [Defamation Act s27] gives a limited protection to some forms of communication. It arises where there is a legal, moral or social duty to communicate something to a person or organisation with an interest in the information. The focus is on the occasion of the publication and the nature of the assertion made. Qualified privilege will rarely be applicable in the case of publication to the public at large.

There are no rigid categories that define occasions of qualified privilege. The defendant must show that the recipient has a particular and specific interest in receiving the information. See for example Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, [62] (Gaudron, McHugh and Gummow JJ).

A common example of where the privilege arises is in relation to employment references. Where a prospective employer requests a reference from a former employer, the contents of the reference may be covered by this privilege. Other examples could include communication between parents and teachers, past and prospective creditors or answering police enquiries: Klason v Australian Capital Territory ([2003] ACTSC 104; 2003) 177 FLR 216.

Unlike absolute privilege, this defence will be defeated if the plaintiff can show the defendant acted with malice. Malice in defamation law means the statement was made for a non-legitimate purpose [Defamation Act s27(1)]. So, for example, if it could be shown that a former employer gave a bad reference in order to destroy a person's career prospects, rather than giving an honest appraisal of the person's work performance, then the defence would be defeated.

Consent and acquiescence

The common law defence of consent and acquiescence is available as a defence to a defamation action. The defence is that the plaintiff implicitly or expressly consented to, assented to the publication of the defamatory imputation. For this defence to succeed the plaintiff's consent must be clear and unequivocal: Mihaka v Wellington Publishing Co (1972) Ltd (1975) 1 NZLR 10, Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443. For example, it is not enough to show that a plaintiff agreed to be part of a public discussion on a TV show or talkback: Syms v Warren (1976) 71 DLR (3d) 558.

Constitutional right to freedom of political discussion

The High Court has implied into the Constitution, a right to freedom of political communication. That means laws that unreasonably restrict communication on political matters may be declared unconstitutional. In the context of the law of defamation it means that communication on political matters MAY be covered by this defence (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520).

What is 'political communication'?

Political communication has been interpreted fairly broadly, however the plaintiff must prove the communication was in regards to political matters or government. This could include discussions about the fitness of politicians for office and political parties, including international political issues [Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520] and communication in regards to candidates in an election (Roberts v Bass [2002] HCA 57; (2003) 194 ALR 161). The privilege may not include communication about judges or magistrates (Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161, John Fairfax Publications Pty Limited v O'Shane [2005] NSWCA 164). Just because an organisation is publicly funded, does not mean it is covered by the privilege (Rowan v Cornwall (No 5) [2002] SASC 160).

Communication needs to be 'reasonable'.

In order for this defence to stand, the communication of the defendant needs to be reasonable in the circumstances. Some of the things that may make the communication unreasonable could include, publication to an unnecessarily wide audience, a failure to properly fact check the story, or give the plaintiff an opportunity to respond, or if it could be shown that the publisher has grounds to believe the imputations were not true, or that they were published with malice (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, *Hockey v Fairfax* Media Publications Pty Limited [2015] FCA 652).

Apologies

An apology is not a defence to a claim of defamation, nor does it constitute an admission of fault or liability by the person who made it and is not relevant to or admissible as evidence on the determination of fault or liability [Defamation Act s19].

However, an apology or correction, especially if it is tendered at an early stage, may be taken into account when calculating the amount of damages (that is, an apology may decrease the amount of money the defendant may have to pay to the plaintiff) [Defamation Act s35].

Offers of Amends

Part 3 of the Defamation Act deals with offers to make amends. If a publisher makes a reasonable offer of amends within 28 days of being given a concerns notice of the offending publication and this offer is not accepted, then this may later provide a full defence in any litigation. For an offer to be reasonable it must include an offer to publish a reasonable correction, and should include an offer to pay adequate compensation if the complaint warrants it (see Defamation Act ss11-18). A person who has been or may be involved in this process should seek legal advice as soon as possible.