Defamation cases in Australia are notoriously hard to run. The main consideration in assessing a claim for defamation is whether there is a monetary loss suffered by the defamed party. Recently, a Sydney lawyer, Chris Murphy, was successful in recovering over $100 000 for defamation against the Daily Telegraph who described him as ‘continuing to battle with the ravages of age and with associated deafness that keep him from representing clients’; which he described as affecting him ‘like cockroaches in (his) brain’.
These matters exemplify the importance of understanding what constitutes defamation and how it balances with the doctrine of freedom of speech in order to protect yourself or your business.
What is Defamation?
In essence, defamation involves the publication of material that adversely impacts another person’s reputation. Defamatory material can come in the form of a photograph or newspaper article but can also commonly involve content published and distributed online or on social media. Therefore, it is important to carefully consider what you post online in order to protect yourself against defamation actions. For example, one social media defamation case of Mickle v Farley  NSWDC 295, a school teacher was awarded over $100,000 after a former colleague posted abusive tweets in response to her promotion.
Defamation in NSW is governed under the Defamation Act 2005 (NSW) and similar instruments exist in other states and territories. To be successful in establishing an action for defamation, the plaintiff generally needs to establish the following:
- The material was communicated to or spread to third parties;
- It identifies the plaintiff or their business; and
- The material contains one or more negative imputations which causes serious harm to the plaintiff’s reputation.
In addition, defamation actions are subject to a one year limitation period from the initial publication of defamatory material.
Defences to Defamation
There are a number of defences available to a defendant in a defamation action. These include:
- Truth: where the statements make are ‘substantially true’;
- Honest opinion: communications which are opinions rather than statements of fact and are based on proper material;
- Absolute privilege: statements that are made in circumstances covered by absolute privilege, such as communications made in court proceedings; and
- Free speech: relating to political communication.
Defending a defamation action can be complex and time consuming, so it is essential to seek legal advice before you commence proceedings.
Case Study of Chris Murphy v Daily Telegraph
The reputational damage at the centre of this case was caused by an article published by the Daily Telegraph, which inferred that Mr Murphy was too old or disabled to practice law competently. In his decision, His Honour Michael Lee held that the phrase in contention conveyed that Mr Murphy was incapable of representing his client’s interests in court due to his age and deafness, which inaccurately reflected on Mr Murphy’s professional life with serious consequences. The Daily Telegraph sought to rely on the defence of truth as Mr Murphy’s did indeed have a hearing disability. This argument was further rejected by the court which found that Mr Murphy’s disability had nothing to do with his purported inability to appear in court.
In addition to the compensation awarded by the Court, the article in question was later rectified to read as: “Murphy… continues to manage matters for his firm’s clients but hasn’t been seen to represent them in court as much in recent times”.
How Etheringtons Solicitors can help
If you would like further information regarding defamation or believe that you have been defamed or accused of posting defamatory content on your social media page, please do not hesitate to contact one of our solicitors on 9963 9800 or via our contact form here.
As our methods of communication change and develop so do our defamation law needs. These changing needs have been recognised recently in a bill (Defamation Amendment Bill 2020) that has passed in the New South Wales upper house. It amends the Defamation Act 2005 (NSW). These reforms are aimed at reducing the number of costly minor claims and the size of defamation payouts. Here are some of the major changes you need to know.
Serious Harm Element
Previously, there was no threshold that had to be met with respect to the seriousness of a claim in Australian defamation law. Claims were not filtered until they reached trial, which meant they had already incurred significant costs both financially and with respect to time. In the proposed amendment, section 10A, the onus would be placed on the plaintiff to prove that the publication ‘has caused, or is likely to cause, serious harm to the reputation of the person’. The aim of section 10A is to encourage the resolution of disputes earlier by creating a threshold that must be met.
Single Publication Rule
There has been an amendment to the Limitation Act 1969 (NSW) to include a single publication rule. Previously, a defamation action had to be commenced within one year of the publication as per the limitation period but the multiple publication rule provided that each publication of the article was subject to its own limitation period. The newly introduced single publication rule means that the limitation period commences when the initial publication occurs and subsequent republications of the same content or a republication of substantially the same content is not subject to its own limitation period.
An amendment has been put forward whereby it is mandated that the person about whom the defamatory comments are made is to issue a concerns notice to the other party to enable them to provide an offer in order to resolve the issue before the court proceedings can be commenced. The amendment provides clarity as to the form of this notice, its timing and content as well as guidance as to the response to the concerns notice.
Public Interest Defence
A new defence has been put in place to ensure that Australian defamation law does not inhibit freedom of expression by introducing a public interest defence. Courts have previously rejected a common law expression of the defence which is in place in the United Kingdom, Canada and New Zealand. The new section, section 29A, states that a defendant will not be held liable if the article concerns an issue of interest to the public and that they reasonably believed that the matter was in the public interest. It is then up to the judge to determine whether the defence has been established. This amendment is of use to media organisations who print information from confidential sources or whistle-blowers.
Contextual Truth Defence
The contextual truth defence allowed for defendants to plead contextual imputations and was designed to operate in instances where there are multiple defamatory meanings where some are ‘substantially true’ while others are not. These were dealt with in section 26 which has been reformed to clarify the defence and enable the defendant to ‘plead back’ any of the imputations that are substantially true.
There has been inconsistency with the interpretation and application of the previous section 35 of the Defamation Act 2005 (NSW). This section provides a maximum amount for the amount of damages that may be awarded for non-economic loss and this cap is more of a scale or range rather than a limit. However, the amendment provides that awards of aggravated damages must be made separately to an award for non-economic loss.
If you would like further information regarding defamation or believe that you have been defamed or accused of posting defamatory content on your social media page, please do not hesitate to contact one of our experienced defamation solicitors on 9963 9800 or via our contact form here.
A Concerns Notice is a process available in Defamation Law under the Defamation Act 2005 [NSW].
A Concerns Notice can be sent to a person who has made defamatory statements, giving them an opportunity to respond by making an offer to make amends.
In the event that a reasonable offer is made but is not accepted, that reasonable offer may provide a complete defence if the alleged defamed person decides to take legal action. However, it is up to a Judge to determine whether or not the offer ought to have been accepted and in doing so would consider whether it was a reasonable offer.
Issuing a Concerns Notice gives a person who may have breached the Defamation Act and exposed themselves to a claim for damages, an opportunity to prevent a claim being made against them by putting forward a reasonable offer.
To be able to use the reasonable offer as a defence in any subsequent legal action the offer:
- must be in writing,
- must indicate that it is an offer to make amends under the Defamation Act,
- must include an offer to publish a reasonable correction of the matters in question; and
- should include an offer to pay the other party’s reasonable expenses incurred before the offer was made.
Whilst the offer may include (but it does not have to include) an offer to pay the compensation, this is not a requirement. However, it would be relevant as to whether it was considered a reasonable offer if proceedings were commenced.
A Concerns Notice is therefore an appropriate tool when you are seeking to resolve a matter quickly, usually with an apology and sometimes with compensation. This depends on the circumstances and on the legal advice the other party is given.
In many cases, a person may not respond to a Concerns Notice. This means that they have lost the opportunity to put forward an offer and to prevent proceedings being initiated against them.
Seek Legal Advice
If you wish to commence proceedings in relation to a defamation matter, you must do so within twelve (12) months from the date of publication. If you would like further information regarding defamation or general media law advice, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via the contact form here.
Not many people are aware of the risks associated with posting on social media. Popular social media platforms such as Twitter and Facebook are not safe spaces to vent your thoughts. In fact in a recent defamation case, the defendant was ordered to pay a staggering amount in damages for his post on Twitter. In this blog, we explore the meaning of defamation and how it still applies in the modern age of social media.
What is Defamation?
Defamation is either an oral (called ‘slander’) or written (called ‘libel’) statement about someone which injures the reputation of that person. In general terms, to prove defamation, one must show the existence of a false statement, which the defendant may try to argue that it was an honest opinion or a fair comment. In Australia, the Defamation Act 2005 sets out the rules regarding defamation law.
Can You Defame People on Social Media?
It is absolutely possible to defame people on social media in Australia and the defamed individual may bring proceedings against you for what you said.
In order to bring a successful defamation case against an individual who posted defamatory material on social media, the following must be satisfied:
- The material must be defamatory;
- The material must identify the plaintiff; and
- The material must have been published to a third party.
Are There Any Recent Case Law Examples?
A recent decision from March 2020 revealed that harsh penalties can be imposed for defamatory statements published on social media. The Supreme Court awarded $110,000 for damaged in relation to defamatory comments made on a Facebook page about the plaintiff.
In this case, a series of posts on a public Facebook page called “Narri Leaks” were made by the defendant Mr Stoltenberg. The post implied that, Mr Bolton, the Mayor of Narrabri Shire Council, was ‘corrupt, dishonest and intimidating in his role as Mayor’. Ms Loder, the other defendant, made “comments” on those Facebook posts.
Mr Bolton commenced defamation proceedings in the Supreme Court against both Mr Stoltenberg and Ms Loder. It was found that the Facebook posts were indeed defamatory, and that Mr Stoltenberg had no defences available to him.
What Can I Do If I Am Defamed Or Being Sued For Defamation?
It is always important to be aware that your activities on social media can have very costly consequences.
If you believe that you have been defamed or if you have been accused of defamation due to posts on your social media page, then you should seek legal advice immediately.
For assistance or advice on how to proceed please call on (02) 9963 9800 or get in touch via our contact form here.
According to Brian Martin, Professor of Social Sciences at the University of Wollongong, the law of defamation hinders free speech and protects powerful people from scrutiny. He actively investigates “suppression of dissent” and writes articles on his findings. In his informative leaflet, Defamation law and free speech, which can be found on his website, he focuses on providing information and options for people who may be threatened by legal action or who may be worried about something they want to say. Martin defines defamation as anything that injures a person’s reputation. “If a comment brings a person into contempt, disrepute or ridicule it is likely to be defamatory,” he says.
His list of potentially incriminating actions include telling your friends your boss is discriminating against you, writing a letter to a media publication stating a politician is dishonest or selling a book containing defamatory material. “The fact is, nearly everyone makes defamatory statements almost every day,” Martin says. “Only very rarely does someone use the law of defamation against such statements.”
If a defamation claim is made against you, Martin suggests focusing on whether you have a right to say something instead of if it is defamatory or not. Your defence can be on various grounds including speaking the truth, the duty to provide information or expressing an opinion, Martin says. He also suggests ways to avoid defamation in the first place, by stating facts and not the conclusion. “Instead of saying “The politician is corrupt,” it is safer to say “The politician failed to reply to my letter” or “The politician received a payment of $100,000 from the developer,” Martin says.
Other ways to avoid defamation include producing and distributing material anonymously, sending what you intend to publish directly to the people who might sue you for it or criticising a person to their face. Martin says defamation only occurs when the comments are heard or read by a “third person”.
As an advocate for the use of petition, street stalls and public meetings to directly challenge the use of defamation laws against free speech, Martin says defamation actions and threats to sue for defamation are often used to try and silence those who criticise people with power and money. He believes our right to free speech is important because it ensures the free flow of ideas and the preservation of democracy.