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Defamation guidelines

Introduction

A defendant will be liable in a civil action for defamation where the plaintiff establishes that the defendant published material which is defamatory of and concerning the plaintiff, in circumstances where no defence operates.

Defamatory material is categorised as 'libel' if it is published in a permanent form (such as print), or 'slander' if published in a more transient form (such as speech). Libel is actionable without proof of financial loss, whereas slander generally requires such proof.

Note: Defamation laws vary considerably from state to state. These guidelines will deal only with Victorian defamation law.

What is 'publication'?

For the purposes of defamation law 'publication' means communication of the relevant material to a third person. This includes:

  • circulating a letter or report containing comments concerning a student
  • any on-line communication

as well as articles and text books.

Who is liable for publication?

'Primary' publishers such as newspaper or journal publishers and broadcasters are liable. A 'secondary' publisher such as a bookseller or newsagent will not be liable if he or she can show that they had no reason to know the material was defamatory.

An employer such as the university will usually be liable for defamatory material published by Academic staff in the course of their employment, for example, material discussed in lectures or articles written for academic journals, information about students provided to inappropriate persons.

In the on-line environment the most likely development is that service providers will be liable only if they have a certain level of 'editorial' control over the material with which they are associated.

What is defamatory?

To determine whether material is defamatory, an assessment must be made of what imputations it conveys. It must then be considered whether those imputations are defamatory.

The following legal tests have been used to determine whether imputations contained in material are defamatory:

(a) Is the material calculated to injure the reputation of another by exposing them to hatred, contempt or ridicule; or

(b) Would the material tend to lower the plaintiff in the estimation of right thinking members of society;or

(c) Would the material tend to make people shun and avoid the plaintiff

The plaintiff need not prove that those to whom the material was published actually responded in the manner contemplated by these tests.

Nor must the plaintiff prove that the imputation is untrue - however the mere fact that the material published was untrue, or that the plaintiff is annoyed or hurt by the publication of private, personal or confidential information does not make such material defamatory.

Identification

It is not necessary to identify a person by name. References to an address or occupation, physical characteristics, mannerisms or social habits may be sufficient to identify someone, notwithstanding that the publisher may not have intended to identify thatperson. If people who know the plaintiff could reasonably conclude that the defamatory material referred to them, this will be sufficient for the purposes of defamation law.

It is also possible to defame a company as companies are considered to have a legal ,personality'. However, a corporation does not have a "personal reputation" and therefore can only sue over allegations relating to its business operations, such as whether it conducts it s business competently or honestly.

An allegation about a deceased person is actionable only if it defames a living person.

Defences

There are a number of defences available to a defendant who would otherwise be liable for publishing defamatory material. These are:

  • justification or 'truth';
  • absolute privilege;
  • qualified privilege;
  • fair comment;
  • innocent publication;
  • consent; and,
  • triviality

Justification

A defamatory publication is presumed to be false. The defendant therefore carries the burden of proving the publication was true (or of establishing another defence). In Victoria, truth is an absolute defence.

Absolute Privilege

Statements made in the course of proceedings in Parliament, in court, or in certain tribunals, and documents presented in these proceedings or published under their authority are accorded absolute privilege. The motive of the speaker or writer, or the accuracy of their statement, is irrelevant. The same absolute protection does not extend to any republication of those statements.

Qualified Privilege

This defence encompasses a variety of activities which are all protected on public policy grounds. Generally, the defence of qualified privilege serves to protect publications which are:

  • made in the performance of a legal, social or moral duty or to protect a legal, social or moral interest; for example, a report to the police of an alleged crime
  • made in reply to an attack (the reply must, however, be relevant, reasonably proportionate to the attack, and made to substantially the same audience); for example, a newspaper editor's response to a public attack on the newspaper's reputation
  • fair and accurate reports of judicial proceedings, parliamentary proceedings and local council meetings (to be fair and accurate, the report must substantially record what was said and done); for example, a report containing allegations made in parliament (so long as the report includes any rebuttal made to the allegation)
  • extracts from parliamentary papers, public records and public notices;
  • official notices issued for public information by a state or federal government; or
  • publications concerning government and political matters affecting Australians (subject to a requirement of reasonableness - the defendant must take steps to verify the material and to publish a response from the person defamed). Examples include, an article commenting on the conduct, policies or fitness for office of government, political parties, public bodies or officers, or, an article commenting on the political views or public conduct of those who are the subject of political debate

Absolute privilege provides protection regardless of the publisher's motive for publication, whereas proof that the publisher was motivated by malice will defeat a defence of qualified privilege. In this context, malice means an improper motive such as spite or ill will, or where there is no honest belief in the truth of the material.

Fair Comment

This defence allows expressions of opinion on matters of public interest to be shielded from defamation liability. The defendant must prove that the comments were published as a fair comment on a matter of public interest.

(a) Comment

A comment is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, 'judgement, remark, observation, etc". No protection is given to statements presented as facts concerning or describing the subject.

The comment must be based on facts which are true (or protected by absolute privilege). In addition, these facts must be stated in or referred to in the material.

The comment must be fair in the sense of being honestly held, and made in the absence of malice.

(b) Matter of public interest

For fair comment to apply, the comment must be on a matter of public interest. The 'public interest' concept includes aspects of public concern such as public administration, government affairs, the administration of Justice, and the public affairs of professionals, corporations and institutions. Commentary and criticism of plays, books, films and other works in the public purview also fall within the definition. For example, critical comment on a particular government policy or the actions of a major company

Public interest does not usually extend to private affairs of people.

Innocent Publication

This defence is available to the distributor or vendor of a publication containing defamatory material, if they are able to show that:

  • they did not know the material was defamatory;
  • this ignorance was not due to negligence on their part; and
  • they had no grounds for believing the publication was likely to contain defamatory material

The state of mind of a primary publisher is generally irrelevant when considering whether there has been an actionable defamation. It has been held that a publisher was liable for defamation even where the publisher had no knowledge and could not readily find out the facts from which the defamatory inference was drawn. In such a case, the publisher clearly had no intention to defame.

Consent

Consent is clearly a defence to defamation. However, it is necessary to prove not only that the person had notice of the publication but that they actually authorised it.

Triviality

Triviality is not a common law defence to defamation. However, if the published material contains only a mild sting, it is more likely the Court will hold that it did not adversely affect the reputation of the person, and therefore was not defamatory.