Defamation at work

Contributed by Susan Platis, Legal Aid ACT and Ben Aulich (https://aulich.com.au/) and current to June 2018.

Sharing workplace investigation information with more than just those legitimately involved, even accidentally, can amount to defamation. There is little risk of a defamation action succeeding against a genuine party to a complaint who seeks information and support from appropriate people only and does not breach their confidentiality obligations. The normal defence to an action for defamation in this situation is called ‘qualified privilege’ (Civil Law (Wrongs) Act s139A). Remember, defamatory comments pose risks inside and outside the workplace, including conduct on social media or out of malice.

Public sector regulations and the Australian Public Service Code of Conduct govern disclosures and statements made in the public sector. These regulations do not protect parties from liability for defamation. To successfully defend a defamation action brought against a party reporting a breach of the Code requires the ‘whistle blower’ to prove matter was shared in good faith and to an authorised person. The ‘qualified privilege’ defence is unlikely to succeed if a disclosure is made to the media.