Defamation law in Australia was revamped in 2005 when uniform legislation was introduced throughout Australia. Before then, alongside the common law, the legislation in the States and Territories around Australia had significant differences. People would choose which State to issue proceedings in, depending on the nature of the publication involved. The 2005 legislation expressly does not detract from the common law, but it made a number of significant additions, and as it stands, parties can rely on principles contained in the statute and the common law.
In a nutshell, the person who complains that he or she has been defamed is referred to as the plaintiff, and the person or company who published the material complained of, is the defendant.
HERE ARE THE BASICS
A. What needs to be proven by the plaintiff
1. Publication
There must be a publication of some sort, to a person other than the plaintiff. If the defendant even says something to someone else, that is a publication. Obviously, broadcast on television, an article in a newspaper and an article downloaded from the worldwide web are all publications. The publication is taken to have occurred when a person understands the words that were published. So for internet purposes, this takes place when a person, other than the plaintiff, downloads an article from a website and understands the words that are contained in that article. The place of publication is the place where the words are read and understood.
2. Identification
The publication must be of and concerning the plaintiff. It does not need to name the plaintiff, but if it doesn’t there must be some extrinsic facts, which if the reader was aware of, would enable the ordinary reasonable reader to identify the plaintiff.
3. Defamatory meaning
This is a two-stage process. Firstly, identify what is meant by the publication and secondly whether the imputations arising from the publication are defamatory. A publication is defamatory of a plaintiff if it contains imputations that:
• have a tendency to lower the plaintiff’s estimation in the eyes of right-thinking members of the society generally; or
• were calculated to injure the reputation of the plaintiff by exposing him or her to hatred, contempt or ridicule;
• have the capacity and tend to put the plaintiff in the position of being shunned and avoided.
The imputations can arise from the natural and ordinary meaning of words, or there can be inferences, such as false or popular innuendoes.
B. Defences
In most defamation cases, the issue is not whether the plaintiff has been defamed, but it is whether the defendant has a defence to the claim. To balance the community interests in having free speech and a proper functioning democratic society, there exist a range of defences that have been created by the common law over time and also according to Statute. These defences are essentially as follows:
1. Truth or justification
If the imputations are true, then the defendant has a complete defence. Regardless of what was published, the plaintiff loses. And it is the worst way to lose. The allegations are repeated at trial, over and over and possibly reported on by the media. The jury then declares that the defamation is true, exacerbating the defamation many times over. Then there is the matter of having to pay the defendant’s costs…. The statute also provides that if the imputations are substantially true, then the defendant has a defence of justification.
2. Fair comment or honest opinion
A defendant is allowed to publish a fair comment or honest opinion. For fair comment, the comment must be based on facts that are truly stated (or absolutely privileged) and the comment must be fair. For honest opinion, all that is required is that the opinion be held honestly (almost regardless of what it is!), that the opinion was based on proper material and that it was on a matter of public interest.
The next step is that the fair comment defence can be defeated if the publisher is actuated by malice. Malice is proven where a person makes a statement for an improper purpose or has an improper motive.
3. Absolute privilege
There are certain occasions where a publication is covered by absolute privilege. This means the person can say whatever they like and they have a complete defence to any defamation claim. For instance, statements made by politicians in the Houses of Parliament, extracts of certain public documents or statements made by witnesses or barristers in court (or during inquiries), are all covered by absolute privilege. You might sometimes hear politicians in the Houses urging their opponents to repeat their statements on the steps outside. This is why.
4. Qualified privilege
The next level of privilege is qualified privilege. This means there are certain situations where the statements made by people are covered by privilege and the person has a defence to any defamation claim, subject to this: that defence is defeated if the person making the statement is actuated by malice.
There are a range of situations where the qualified privilege defence exists. They include the following.
4.1 Qualified privilege: Fair and accurate report of proceedings of public concern
This applies to reports of court proceedings, parliamentary proceedings and a range of other types of proceedings that are public in nature. Obviously, the report has to be fair and it has to be accurate.
4.2 Qualified privilege: Duty to publish in circumstances where the recipient has a corresponding interest in receiving the information
This applies to situations where there is a reciprocal duty to publish and an interest in receiving the information. For instance, an employee might make statements about another person’s job performance to the Managing Director of the business, for the purposes of the management of the business. Or if a neighbor tells another neighbor that a person down the street had been investigated by police in relation to a number of violent incidents. Once again, this defence would be defeated by malice.
4.3 Qualified privilege: Discussion of government and political matter
In 1998, it was held by the High Court that there exists in the Commonwealth Constitution an implied freedom to communicate about government and political matters. This is provided that the publisher acts reasonably, which usually involves things like asking the person that is the subject of the publication for their version of events. This was a real boon for the media companies, who then had further freedom when discussing the performance of politicians and other people in public positions. As for politicians, well they were no longer renovating their homes on the back of newspaper articles questioning their sanity.
4.4 Qualified privilege: reply to Attack
An ancient defence was the reply to attack defence. This means that if a person, in making defamatory statements, is simply replying or providing an answer to an attack from the plaintiff, then there may be a defence of qualified privilege. This is a rare defence but with the advent of the internet, is likely to get used more in the future.
5. Innocent dissemination
Any person who takes part in the publication of material is, as a matter of law, taken to be a publisher of that material. This includes the author, editor, publisher and distributor. So that newsagents or other innocent disseminators are not held to be liable for defamation, the common law and the relevant legislators have created a defence of innocent dissemination. This also may have relevance to a range of new types of internet claims, perhaps involving internet service providers or hyperlinks.