Risks of speaking out—defamation

What is defamation?

Defamation occurs when a ‘publication’ (see below) identifies a person and conveys a meaning that tends to:

• lower that person’s reputation in the estimation of right-thinking members of society
• lead people to ridicule, avoid or despise that person or
• injure that person’s reputation in business, trade or profession.

A person can take action for defamation without proof of any actual damage having been suffered as a result of the injury to their reputation. However, even if what you have said is defamatory, there may be a defence available, for example, it may be based on justification (truth), fair comment or privilege (absolute or qualified).

Defamation law is based on common law principles (principles developed through case law) supplemented by statutory provisions. In 2004, the Attorneys-General of the States and Territories agreed to support the enactment of uniform defamation laws in their respective jurisdictions. Before this agreement, defamation laws differed from jurisdiction to jurisdiction in Australia, but in 2005 uniform defamation laws were enacted in each state and territory, commencing in January 2006. ACT included the provisions of the uniform model defamation law into the Civil Law (Wrongs) Act 2002 (ACT) (‘Civil Wrongs Act’).

Elements of defamation

There are three main elements that must be established by the party alleging defamation:

• the defamatory material is published
• it identifies a particular person, and
• has a defamatory meaning.

Publication

Material is deemed 'published' if it is communicated to anyone other than the party who claims to have been defamed. Material does not have to be published in a newspaper; any of the following could fall into the legal definition of publication:

• comment in a conversation with a person (other than the person defamed)
• media release
• comments made during a speaking engagement
• a letter
• a banner
• material published on a website
• material contained in an email, including internal emails.

It is not a defence to say you are simply repeating what someone else has already published. Republication of another person’s defamatory statement can give rise to a new and separate action for defamation. The law requires defamation proceedings to be brought within a year of broadcast or publication. However, this may be extended to 3 years if the plaintiff can provide reasonable cause as to why they could not start the action within the limitation period.

An identifiable person

The defamed person need not be explicitly identified. If certain recipients of the publication had knowledge of special facts or circumstances at the time of publication, which enabled identification of the individual, then this is sufficient. Further, if the published material/statement identifies someone falsely, then the person who has been wrongly identified can also establish they have been wrongly defamed.

Only living persons can be defamed (Civil Wrongs Act s 122). Significantly, since the changes implemented in 2006, corporations (which are not public bodies or not-for-profit) employing more than 10 people can no longer sue for defamation (Civil Wrongs Act s 121). This severely limits large corporations from suing people who speak out against them. However, an individual director of a large company may still sue for defamation if the defamatory material points to the specific individual.

Defamatory material

Material is considered to be defamatory when judged against community standards. The test applied by the court is whether an ordinary reasonable person would have understood the material as:

• lowering that person’s reputation in the opinion of right thinking members of society
• leading people to ridicule, avoid or despise that person, or
• injuring that person’s reputation in business, trade or profession.

Defences to defamation

The defences to a defamation action are designed to balance the competing public interests of freedom of speech and the protection of an individual’s right to reputation. The defences of most relevance in relation to environmental comments are:

• justification/truth
• fair comment
• honest opinion
• privilege (absolute or qualified).

These defences are either set out in Division 9.4.2 of the Civil Wrongs Act (such as justification, privilege and honest opinion) or are available at common law (such as fair comment).

Justification/truth

This defence is for publication of material that is true. Previously in the ACT, it was not sufficient to prove that the material was true; the publication of the material also had to be for the public benefit.

However, under section 135 of the Civil Wrongs Act, there is a defence that the defamatory imputations carried by the matter of which the plaintiff complains are ‘substantially true’. The term ‘substantially true’ is defined in section 116 to mean ‘true in substance or not materially different from the truth’. In all other respects, the common law principles apply.

Fair comment

The common law provides a defence of fair comment on a matter of public interest which protects freedom of expression, which has been long regarded as a basic right. Under this defence the comment must be:

• related to a matter of public interest
• based on fact or other proper material
• a comment, not a statement of fact and
• fair, in the sense that it is the honest expression of the person’s real view—the defendant must prove that the comment is objectively fair, that is, that an honest or fair-minded person could hold such an opinion, even if it is exaggerated, prejudiced or obstinate.

This common law defence may be defeated by proof of malice.

Honest opinion

The statutory defence of honest opinion is modelled on the common law defence of fair comment, but both continue to apply.

Section 139B of the Civil Wrongs Act provides a defence to the publication of defamatory matter if the defendant proves that:

• the matter was an expression of opinion of the defendant rather than a statement of fact
• the opinion related to a matter of public interest and
• the opinion was based on ‘proper material’.

‘Proper material’ is defined in section 139B(5) to mean material that is substantially true, was published on an occasion of absolute or qualified privilege (see below) or was published on an occasion that attracted the protection of a defence under section 138 (publication of certain public documents) or section 139 (fair report of proceedings of public concern) or the defence of fair comment at general law.

Privilege – absolute and qualified

It is a defence to an action for defamation if it can be shown the relevant information was privileged at the time of communication. If the publication is privileged, the truth of the defamatory material is irrelevant. There are two levels of privilege, absolute and qualified.

The publisher of absolutely privileged material enjoys a complete defence from defamation proceedings. The defence can be relied on even if the material was published maliciously. The two most commonly raised instances of publications protected by absolute privilege are:

• statements made in the course of parliamentary proceedings and in official parliamentary papers—the term ‘parliamentary proceedings’ extends to parliamentary committee reports and inquiries
• statements made in the course of judicial or quasi-judicial proceedings.

Absolute privilege only attaches to the primary publication of absolutely privileged materials, for example, in parliament or the court. The Civil Wrongs Act confirms the common law defence of absolute privilege in section 137, which states that material published in the course of proceedings of parliamentary bodies, Australian courts and tribunals attract absolute privilege.

The defence of qualified privilege covers a range of different situations where, in the interests of protecting the essential flow of information, a limited or qualified privilege is allowed by the law. Broadly speaking, these are situations in which the publisher or speaker has an interest in providing information on a particular subject to a person who has an interest in receiving the information, and the conduct of the defendant is reasonable in the circumstances (Civil Wrongs Act s 139A). An example of qualified privilege might be where a minister or official, who is going to make a decision on an issue, has called for submissions and views from interest groups.

Malice or improper purpose will defeat the defence of qualified privilege.

Fair report of proceedings of public concern

Section 139 provides a defence to the publication of defamatory matter if the defendant proves that the matter was a fair report of any proceedings of public concern. To attract the privilege, a matter must be published honestly for the information of the public and the report must indeed be both fair and accurate. The report need not be complete, but it must be neutral and balanced. In other words, you must be careful not to quote selectively from the material. Another defence is if you publish something based on a previous, earlier report of proceedings of public concern, and produce a fair copy, summary or extract of that earlier report with no knowledge that the earlier report was not fair.

This means that fair comment about much of what is spoken in parliament or presented in courts is protected by privilege.

Avoiding defamation actions

Some tips for avoiding defamation actions are:

• fight the issue not the personality—ensure that any communication does not involve any form of personal criticism or attack on an identifiable individual
• ensure the truth of any representation made, and ensure the truth may be verified with original documentation or witness statements—if you are unsure of the truth of a representation, do not make it
• where possible, attempt to include the factual basis of a representation along with the published material
• an issue of public interest or benefit relating to a representation should be readily identifiable
• think before you click when sending email—do not write anything in an e-mail that you would not feel comfortable about seeing published on the front page of a national newspaper
• have a colleague scan any material intended for public release - in many cases, an independent mind will see potential defamatory material when you may not.