Defamation Law in Australia

Last Updated: 4 February 2019, v11

 
 
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Defamation is the area of law that is concerned with a person’s damaged reputation. The law previously used the terms ‘libel’ and ‘slander’ however these terms are no longer is use and instead fall under the general term, ‘defamation’. This article is an in-depth guide to the law of defamation written for the everyday person, not for the legal professional. If you would like to read the complex legal technicalities, provided at the end of this article is a list of resources.

Below is an infographic which presents a simple overview on the law of defamation.

Defamation Overview Infographic v7.png
 

  1. What Is Defamation?


Defamation is the area of law that is concerned with a person’s damaged reputation. The law previously used the terms ‘libel’ and ‘slander’ however these terms are no longer is use and instead fall under the general term, ‘defamation’. 

Defamatory publications can come in the form of Facebook posts, Twitter posts, emails, internet articles, online business reviews, Google search results, YouTube, blog posts, SMS text messages, newspaper articles, radio shows, television shows, poems, novels, cartoons, paintings, photographs, songs, and so on.

Often, a defamer will not explicitly say what they mean, such as “James Draper is a fraud.” Instead, they will insinuate the meaning. The law calls this interpretation of the publication an ‘imputation’. Some examples of imputations include, “James Draper is a scammer”, “James Draper is a pedophile”, “James draper provides bad services.”

Some other imputations from past cases have included: (James Draper) is a scammer; provides bad services; blames others for his own problems; delays work; deserves to be fired form work; incompetent; mismanages business; deceiving; dishonest; insulting; a scab; is a bully; is a thief; is a pedophile; is a rapist; threatened to kill; threatened to rape; is a criminal; had sex with his sisters; promiscuous; used his employment to elicit sexual relationships; had sex with students; is a sexual predator; is a war criminal; collaborated with Nazis; is trying to institute Nazism into Australia; and so on. 

How Do I Know Whether the Publication is Defamatory? 

Ultimately, this is for the judge and jury to decide. However, the law states that in order for a publication to be defamatory, the typical ordinary person must view the material as likely to damage a person’s reputation. To illustrate, if you hypothetically presented several strangers with the alleged defamatory publication, those people would have to conclude that the publication would damage the person’s reputation. Alternatively, a publication can be defamatory if it is likely to cause a person to be subjected hatred, contempt, or ridicule, or if it is likely to cause a person to be shunned or avoided.

2. How Can a Lawyer Help Me?

The lawyer will assess your situation and provide options for you. This may include the following:

2.1. If I’ve Been Defamed

Concerns Notice: Lawyers may draft, prepare and serve a Concerns Notice. A concerns notice informs the other party the material and its meaning which you believe are defamatory.


Offer to Make Amends: 
The other party has 28 days to respond to the Concerns Notice and to make an offer to repair the situation. This may include a written apology, retraction of defamatory material, publication of a correction, a promise not to publish defamatory material in the future, or compensation. The lawyer may advise you on whether you should accept or reject the offer.


Court: If you think the Offer to Make Amends is not satisfactory, the lawyer may advise you on whether you should initiate court proceedings and they may act on your behalf. 

Remove the Online Post: Lawyers may help you attempt to remove the defamatory material posted online. 


Letter of Demand: Lawyers may draft, prepare and send a letter of demand.

2.2. If I’ve Been Accused of Defamation

 

Offer to Make Amends: When you have received a Concerns Notice, you have 28 days to respond and make an offer to amend the defamatory material. This may include a written apology, retraction of defamatory material, publication of a correction, a promise not to publish defamatory material in the future, or compensation. The lawyer may advise you what you should offer to the other party, if anything.

Court: If the other party commences proceedings against you, the lawyer may offer to act on your behalf. 

2.3. Other

Pre-Publication Review: Lawyers may provide businesses or public figures with pre-publication review services. This where the lawyers will review the material and assess whether this may expose you to unwanted defamation claims.

3.1. If I Win, How Much Will I Get?

A lawyer cannot guarantee you the amount of money the judge will award. However, the following will give you a very general idea based-off past cases and some factors which judges will take into consideration when assessing damages (compensation amount).

Firstly, below is a list of all cases from the past 10 years which have been awarded compensation. This data for this graph was primarily collected from jade.io by examining every case from the last 10 years in the category ‘Communications, Media and Defamation’ and recording the compensation for defamation cases. Note that this graph separates each plaintiff (the person suing) because within the one case, plaintiffs can be awarded largely different amounts.

Compensation for Defamation Cases (2008 - 2018)

 

To download an Excel Spreadsheet of this graph, click here.

As the above graph demonstrates, there is an enormous variation in the amount the judge awards a defamed person. For example, one case was awarded $500 and another case was awarded $850,000. The average award from 2008 to 2018 was $120,276, however, as there is such a wide variation, this is not meaningful. Instead, below is a graph which shows the distribution of awards.

Distribution of Awards for Defamation Cases (2008 - 2018)

Distribution of Awards for Defamation Cases (2008 - 2018)

 

To download an Excel Spreadsheet of this graph, click here.

The above graph shows the most common awards are under $50,000. After $50,000, the likelihood of a higher award becomes progressively less common.

In general, for the lower compensation amounts, the reach of the defamatory material tends to be small, such as to a hand-full of people. For the higher-compensation amounts, the defamatory material tends to be wide-spread over the media, repeated many times over, and or negatively affected the person’s financial situation.

How Does the Judge Determine the Amount of Compensation?

There are three main categories of damages (compensation) which the judge may consider. Firstly, compensation for non-economic loss, secondly, compensation for aggravated damages, and thirdly, compensation for economic loss.

Compensation for Non-Economic Loss: The purpose of awarding damages for non-economic loss is to 1) provide consolation for the person harmed, 2) act as vindication for the person harmed, and 3) act as reparation. For the damages to act as vindication, the damages should in theory be sufficient enough to convince the bystander that the defamer was baseless. 

The court may look at a number of factors when calculating damages for non-economic loss:

  • The court may consider the person’s injured feelings. To prove this, the court may look at whether the person has been ostracised from friends and clubs;

  • The court may consider loss of business.

The maximum for damaged that can awarded for non-economic loss is $389,500. However, this limit can be exceeded with ‘aggravated damages.’ Further, compensation for economic loss does not have a limit. 

Compensation for Aggravated Damages: Aggravated damages may be awarded when the conduct of the defamer increased injury to the defamed. This may include conduct prior to publication, conduct after publication, and conduct at the trial itself. 

Some factors for consideration include: 

  • Whether the defamer failed to make proper inquiries prior to publication;

  • Whether the defamer repetitively published defamatory material; 

  • Whether the defamer retaliated at the defamed for suing them;

  • Whether the apology was inadequate, however an apology is not needed;

  • Whether the publication material was false;

  • And whether the defamer conducted themselves poorly in court, such as arguing baseless defenses.

Compensation for Economic Loss:  Compensation for economic loss seeks to compensate for loss of profit, loss of income, loss of business, loss of employment, loss of opportunity to earn income, and so on. Compensation for economic loss has no maximum amount that can be awarded, however, the court will not engage in speculation and guess work. The court may require an expert to verify or assess the loss. 

3.2. How Much Does a Court Case Cost?

 

Generally, the losing party is ordered to pay the winning party’s legal fees. The costs of going to court is very expensive and can range very roughly from $20,000 to $800,000 or higher. In the case Kostov v Nationwide News Pty Ltd (No.1) [2018] NSWSC 1822, the defendant’s (the person who was sued) legal fees totalled $20,000. Alternatively, in the case Moran v Schwartz Publishing Pty Ltd (No 2) [2015] WASC 35, the defendant’s fees were estimated to total $780,000. 

3.3 What Are the Chances That I Will Win?

There is no way of determining the odds of success without a lawyer examining your matter. Even then, a lawyer’s estimation is not a guarantee. In saying that, the success rate from past cases may give you some insight. From 2013 to 2017, the plaintiff (the person suing) won only 34.9% of the time. This means, the plaintiff lost 65.1% of the time.

Defamation: Plaintiffs vs Defendants

Plaintiffs vs Defendants: Who Won More Often? (2013 - 2017)

 

Reference: University of Technology Sydney, Centre for Media Transition, Trends in Digital Defamation: Defendants, Plaintiffs, Platforms

Note, we define the defendant to have ‘won’ when the plaintiff’s claim was dismissed for any reason. For example, the imputations were not conveyed, the imputations were not defamatory, the defendant could not be identified, or the defendant’s defence was successful.

 3.4 Which Law Firms are Most Experienced in Defamation Court Cases?

 

The following statistics are derived from Jade.io. The data was collected by searching for the name of the firm and filtering by the category ‘Communications, Media and Defamation’ and then counting the number of different defamation matters. While this is as accurate as one can reasonably be, there may be a case or two that is missing or added. The data was collected in October 2018 and most firms below advertised defamation services on their website. While data was collected on an additional 50 firms, those firms did not advertise defamation services on their website and had zero defamation cases. And so, they were not included in this graph due to irrelevance.

Which Law Firms are Most Experienced in Defamation Litigation?

 

As shown from the graph above, the top three most experienced law firms for running defamation court cases are Banki Haddock Fiora, Johnson Winter & Slattery Lawyers, and Goldsmith’s Lawyers (excluding the ‘big six firms’).

4.1. Can I Sue for Social Media or Internet Posts?

Absolutely. In fact, from 2013 to 2017, 51% of cases were digital defamation cases.

Percentage of Digital to Non-Digital Defamation Cases (2013 - 2017)

Percentage of Digital to Non-Digital Defamation Cases (2013 - 2017)

 

Reference: University of Technology Sydney, Centre for Media Transition, Trends in Digital Defamation: Defendants, Plaintiffs, Platforms


For interest, the graph below shows which platforms are most common for digital defamation. This includes Facebook, Twitter, Google, email, text messages, and non-mainstream websites.

Which Digital Platforms were Most Common for Defamation Cases (2013-2017)

Which Digital Platforms were Most Common for Defamation Cases (2013-2017)

 

4.2. Are Defamation Cases Reserved Only for the Rich & Famous? No.

 

Traditionally, defamation cases have involved public figures against media organisations. However, this has changed over the years. From 2013 to 2017, only 21% of cases were initiated by ‘public figures’ which means 79% of defamation cases were initiated by everyday people. Note, a ‘public figure’ is defined by people who are celebrities, high profile politicians, local council/government members, ambassadors, high profile doctors, lawyers, and businessmen/women.

Percentage of Cases for 'Public Figures' and Everyday People (2013 - 2017)

Percentage of Cases for 'Public Figures' and Everyday People (2013 - 2017)

 

Reference: University of Technology Sydney, Centre for Media Transition, Trends in Digital Defamation: Defendants, Plaintiffs, Platforms

Furthermore, from 2013 to 2017, only 25.9 of defendants were media organisations. This means everyday people are litigating defamation matters more often than public figures and media organisations.

5. Defamation Law: An Overview

This section provides a brief description on the law of defamation in Australia. There are two major components. A) The ‘elements’ of defamation and B), the defences to defamation.

The elements of defamation are broken into three parts:

  1. The imputation;

  2. Identification; and

  3. Publication.

The defences to defamation include:

  1. The defence of justification;

  2. The defence of contextual truth;

  3. The defence of absolute privilege;

  4. The defence of qualified privilege for provision of certain information;

  5. The defence for publication of public documents;

  6. Defences of fair report of proceedings of public concern;

  7. The defence of fair and accurate report of judicial proceedings;

  8. The defence of fair and accurate report of foreign judicial proceedings;

  9. The defence of fair and accurate report of quasi-judicial proceedings;

  10. The defence of fair and accurate report of parliamentary proceedings;

  11. Defences of honest opinion;

  12. The defence of innocent dissemination;

  13. The defence of triviality;

  14. The defence of consent;

  15. The defence of illegality; and

  16. The defence of time-limitation.

Each will be addressed accordingly. But before, the law of defamation is quite complex, so while the following section is written for the everyday person, some general legal terms need to be used.

 

General Legal Terms 

  • Plaintiff = The person suing.

  • Defendant = The person defending themselves.

  • Matter = An article, report, advertisement, newspaper, magazine, report, television, radio, the internet, letter, note, picture, gesture, spoken word, etc.

  • Imputation = The interpretation of the matter. For example, an article may not explicitly say that the plaintiff is a fraud, but we know in actuality that this is what the article is insinuating. Thus, in this case, imputation would be: ‘The plaintiff is a fraud.’

A. The Elements of Defamation

1. Imputation


Often, the defendant will not explicitly say what they mean. For example, ‘James Draper is a fraud.’ Instead, they insinuate that he is a fraud within the publication. The law calls this interpretation of the publication an ‘imputation’.

 

Firstly, the court must agree with the plaintiff that the publication conveys the imputations which the plaintiff alleges. Secondly, if the court agrees that the publication does convey the imputation, the court must then decide whether the imputation is actually defamatory or not.

 

There are three ways that the imputation can be defamatory. One, the typical ordinary person would likely perceive the publication to lower the plaintiff’s reputation in the eyes of others. To illustrate, if you hypothetically presented strangers with the alleged defamatory material, those people would likely conclude that the material would damage a person’s reputation. Two, the publication is likely to subject the plaintiff to hatred, contempt and ridicule. Three, the publication is likely to subject the plaintiff to being shunned or avoided, that is, the material is so egregious that people would probably avoid the plaintiff.

 

The plaintiff does not need to prove whether people actually think lower of them, or prove whether they have been subjected to hatred, contempt or ridicule, or prove whether they have been shunned or avoided. Instead, the plaintiff needs to convince the court that the defendant’s publication was so horrendous that it would obviously cause their reputation to be lowered, or subjected to hatred, contempt, ridicule, or shunned or avoided.

2. Identification

 

The alleged defamatory material must identify the person claimed to be defamed. Generally, this is straight-forward however there are circumstances in which identification is more difficult. For example, in cases where alleged defamatory material does not explicitly name the plaintiff. Or, in cases where the plaintiff is only identifiable to some people who have prior knowledge of the situation but not identifiable to others. Or, in some circumstances, the defamed person has the same name as the person that the publisher was targeting the material towards.

 3. Publication

 

The plaintiff must establish that the defendant did actually published the matter. In the legal sense, ‘publication’ is the act of communicating defamatory matter – in any form – from one person to another. A publisher is any person or entity that participates in the dissemination of defamatory matter. On the surface, this may suggest that bookstores or news agencies are publishers, however, these people are protected under the defence of innocent dissemination.

 

The minimum number of people that the publication must reach, is one person other than the plaintiff. It is not required that the publication is spread to masses of people.

 

Not only can a defendant be held liable for publishing defamatory material, a defendant can also be held liable for not stopping the continuation of defamation or not removing the defamatory material. For example, in one case, some people stuck posters to a bus shelter which imputed that the political candidate was a Nazi. The bus shelter did not remove the posters in a reasonable time frame and was held to be liable as a publisher.

 

A defendant who repeats the defamatory matter, which originated from another source, can also be liable as a publisher. However, the defendant is likely to be exempt if they were repeating the defamatory material for the purpose of publishing a denial or a contradiction.

B. Defences to Defamation

1. The Defence of Justification (Truth)

The defence for justification protects the defendant in circumstances where the defendant can prove that defamatory imputation is factually true. It does not matter whether the defendant believed the allegation to be true, nor had good intentions, the defamatory imputation must be objectively true. The degree that the allegation needs to be factual does not require perfection. Trivial and irrelevant details that are not factually correct may not ruin the defence of justification.

2. The Defence of Contextual Truth

The Defence of Contextual truth is where the defendant pleads imputations of their own (called contextual imputations) in addition to the plaintiff’s pleaded imputations. The contextual imputations must be proven true and also outweigh any untrue defamatory imputations. This is best explained through an example.

Imagine that Lauren wrote in a defamatory article about James which imputed that James (a) was drink driving, (b) was taking illegal drugs, and (c) was imprisoned for murder. Now, James sued Lauren and pleaded the first two imputations, (a) drink driving and (a) drugs, but deliberately did not plead the third imputation, (c) murder. This is because the (a) drink driving and (b) drug allegations were factually false but the (c) murder allegation was factually true. In response, Lauren defended herself with the defence of contextual truth and pleaded that her article also imputed that James was (c) imprisoned murder. While the drink driving and drug allegations were defamatory of James, the murder imputation was true and also outweighed the drink driving and drug imputations. The drink driving and drug imputations did not bring any further harm to James’ reputation as the murder imputation already seriously damaged his reputation. As the murder imputation was true, Lauren successfully defended herself with the defence of contextual truth.

Some rules for the defence of contextual truth include:

  • The defendant’s imputations must be substantially different from the plaintiff’s imputations.

  • If the contextual imputations are found to be true, the plaintiff’s defamatory imputations do not further harm the plaintiff reputation. Or, in order words, the contextual imputations must overpower and outweigh the plaintiff’s imputations.

  • The contextual imputations must arise from the publication which the plaintiff complains. It cannot arise from prior or different publications.

3. The Defence of Absolute Privilege

 

There are three main occasions in which the plaintiff is given a complete defence irrespective of whether the words were repugnant, false, spoken with malice, or damaging. These occasions are court proceedings, parliamentary proceedings and communications between high officers of the state.

 

Firstly, for court proceedings, judges, barristers, solicitors, witnesses, jurors, and parties are all protected by the defence of absolute privilege includes. Secondly, for parliamentary proceedings, the defence of absolute privilege extends to documents published by a parliamentary body, debates of a parliamentary body, giving evidence to a parliamentary body, and documents submitted to a parliamentary body. And thirdly, for high officers of state, some past examples of people who have been protected by absolute privilege include communications by the Secretary of State for India to the Parliamentary Under-Secretary for India; communications between the High Commissioner of Australia, United Kington, and the Australian Prime Minister. Absolute privilege may also protect senior military and naval officers.

4. The Defence of Qualified Privilege for Provision of Certain Information

 

The defence of qualified privilege for provision of certain information protects the defendant in circumstances where the defendant believes that there is a real public interest in what they published. A public interest cannot be matters of pure gossip, curiosity, or news. Some past cases which have successfully applied qualified privilege include performance and training of a football team, and information about bushfires.

 

In addition to public interest, the conduct of the defendant in publishing the matter must be reasonable in the circumstances. Whether the defendant’s conduct was reasonable, the court may consider:

  • The degree of public interest;

  • The seriousness of the defamatory matter;

  • The quality of sources and whether the defendant made a reasonable inquiry as to the quality of sources;

  • Whether the defendant distinguished between suspicion, allegation, and proven facts;

  • Whether the story was one-sided;

  • Whether the defendant made an irrational inference or illogical inference;

  • Whether the defendant relied on legitimate evidence;

  • Whether the defendant believed in the truth of the imputations;

  • If the story was one sided, whether the defendant took steps to obtain and publish a response from the person; and

  • If the defendant did not intend to be defamatory, whether the defendant could reasonably foresee at the time that the publication would defame the plaintiff.

 

Note, the defence of qualified privilege may be lost if the defendant published with malice.

5. The Defence for Publication of Public Documents


The defence of publication of public documents protects the defendant in circumstances where the defendant publishes defamatory matter derived from a public document. The defamatory matter can also be derived from a fair copy, a summary, or an extract of the public document. A ‘public document’ includes:

  • Reports and papers published by a parliamentary body. A parliamentary body includes a parliament or legislature of any country; a house of a parliament or legislature of any country; a committee of a parliament or legislature of any country; and a committee of a house or houses of a parliament or legislature of any country.

  • A record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body.

  • Documents presented to a parliamentary body of any country.

  • Documents published by the government of any country.

  • And judgements published by courts and tribunals of any country.


The publication needs to be a fair report of the public documents.

6. Defences of Fair Report of Proceedings of Public Concern

 

Defences of fair report of proceedings of public concern protects the defendant in circumstances where the defendant publishes defamatory matter derived from a fair report of any ‘proceedings of public concern.’ The defamatory matter can also be derived from a fair copy, a summary, or an extract of any proceedings of public concern. Proceedings of public concern includes:

  • Proceedings of a parliamentary body. A parliamentary body includes a parliament or legislature of any country; a house of a parliament or legislature of any country; a committee of a parliament or legislature of any country; and a committee of a house or houses of a parliament or legislature of any country.

  • Proceedings in public of an international organisation of any countries.

  • Proceedings in public of the governments of any countries.

  • Proceedings in public of an international conference at which the governments of any countries are represented.

  • Proceedings in public of any international court or tribunal.

  • Proceedings in public of a court or arbitral tribunal of any country.

  • Proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country.

  • Proceedings in public of a local government body of any Australian jurisdiction.

  • Proceedings of a learned society (see for example) in Australia or of a committee or governing body of the society. The society’s proceedings must be related to a decision about its members or of those who under contractual control.

  • Proceedings of a sport or recreation association (see for example) in Australia or of a committee or governing body of the association. The association’s proceedings must be related to a decision about its members or of those who under contractual control.

  • Proceedings of a trade association (see for example) in Australia or of a committee or governing body of the association. The association’s proceedings must be related to a decision about its members or of those who under contractual control.

  • Proceedings of a public meeting of shareholders of a public company in Australia.

  • Proceedings of a public meeting in Australia related to the candidature of a person for public office.

  • Proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman.

  • And proceedings in public of a law reform body of any country.

 

An exception of this defence is in circumstances where the defendant did not publish the information honestly. Note that publishing in order to make a profit is acceptable.

7. The Defence of Fair and Accurate Report of Judicial Proceedings

 

‘The defence of fair and accurate report of judicial proceedings’ is similar to the ‘defences of fair report of proceedings of public concern’. The former was created by parliament and the later was created and collated by courts over a long period of time. The two are similar but separate defences.

 

The defence of fair and accurate report of judicial proceedings protects the defendant in circumstances where the defendant published defamatory material derived from court proceedings (see general meaning of judicial proceedings).


The requirements of this defence in order to be protected include, but are not limited to:     

  • The report must be fair. Fairness may be determined by comparing the report to what actually occurred.

  • The defamatory statements must have a connection to the court proceedings.

  • The report must identify who made the statements during court. The report does not need to be a verbatim account, nor does the report need to contain quotes.

  • The report cannot miss fundamental and essential facts. However, not all parts of the situation of event need be included.

  • The report needs to be substantially accurate. While complete accuracy is not required, obvious inaccuracy may be held as not fair.

  • It does not matter whether the statements made in court are factually false. What matters is the statements are reported accurately.

  • The defence must not publish with malice. If published with malice, the defence may be lost.

 

The protected defamatory material may be published before the judicial proceedings have ended. Some examples of circumstances which are protected by the defence includes statements made by witnesses and evidence which the court uses to make its decision. Not all defamatory statements made during court are protected by this defence. Some example of circumstances which may not be protected by the defence include:

  • Defamatory statements made by bystanders.

  • Documents prepared for court, but not used by the court to make its decision.

  • Opinions about the event or the situation. Instead, the report needs to be a factual description of what occurred.

8. The Defence of Fair and Accurate Report of Foreign Judicial Proceedings

‘The defence of fair and accurate report of quasi-judicial proceedings’ is similar to the ‘defences of fair report of proceedings of public concern’. The former was created by parliament and the later was created and collated by courts over a long period of time. The two are similar but separate defences.

The defence of fair and accurate report of foreign judicial proceedings protects the defendant in circumstances where the defendant published defamatory material derived from foreign judicial proceedings. Although, reports of all countries may not be protected. There must be a public interest in Australia for reporting on foreign judicial proceedings. Curiosity or gossip may not constitute a public interest. In addition, the report must be fair and substantially accurate.

9. The Defence of Fair and Accurate Report of Quasi-Judicial Proceedings

 

‘The defence of fair and accurate report of quasi-judicial proceedings’ is similar to the ‘defences of fair report of proceedings of public concern’. The former was created by parliament and the later was created and collated by courts over a long period of time. The two are similar but separate defences.

The defence of fair and accurate report of quasi-judicial proceedings protects the defendant in circumstances where the defendant published defamatory material derived from quasi-judicial proceedings. Quasi-judicial proceedings are proceedings of a non-judicial body, such as administrative agencies and tribunals, who exercise their functions and powers in a manner that is analogous to judicial power. For example, the Legal Practitioners Disciplinary Tribunal, the Mental Health Review Tribunal, and the Swimming Pool Fencing Review Committee. The report must be fair and accurate and there must be a public interest for the report to be released.

10. The Defence of Fair and Accurate Report of Parliamentary Proceedings

 

‘The defence of fair and accurate report of parliamentary proceedings’ is similar to the ‘defences of fair report of proceedings of public concern’. The former was created by parliament and the later was created and collated by courts over a long period of time. The two are similar but separate defences.

 

The defence of fair and accurate report of parliamentary proceedings protects the defendant in circumstances where the defendant published defamatory material derived from parliamentary proceedings. In order to be protected by this defence, some requirements include:

  • The report must be fair and mostly accurate. It does not matter whether the parliamentarian made a false statement during parliament. What matters is that the publisher accurately reported on the statement.

  • The publisher must not have an improper motive for publishing.

  • The subject matter of the report needs hold a genuine public interest. Note that public interest does not mean what the public will find interesting.

  • The publisher has liberty to choose which parts of the parliamentary proceedings they report.

14. The Defence of Consent

 

The defence of consent protects the defendant in circumstances where the plaintiff consented to being defamed.

15. The Defence of Illegality

 

The defence of illegality protects the defendant in circumstances where the plaintiff built their reputation through illegal activity. For example, a drug dealer sues for their damaged drug-dealing reputation.

6. Examples of Defamation Cases

The following is a list of examples of defamation cases. It is divided into two categories. The first category is specific defamatory imputations, for example, “James Draper is a racist”, “James Draper is a pedophile”, “James Draper is a criminal”. The second category is the specific platform, for example, Facebook, Email, or Letter.

1. Defamatory Imputations

#MeToo/Sexual Allegation

Case: Gayle v Fairfax Media Publications Pty Ltd (No 2) Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838

Chris Gayle was a Jamaican cricketer who played for the West Indies team. Mr. Gayle was involved in an awkward interview with a female journalist which was said to make her feel uncomfortable. This interview sparked a wave of articles about Mr. Gayle. The Age, The Sydney Morning Herald and The Canberra Times published at total of 28 articles about Mr. Gayle reaching over a million people. The articles addressed the awkward interview but additionally and separately accused Mr. Gayle of wrongly exposing his genitals to a woman in the cricket changing rooms.

The media admitted that the articles were defamatory but they defended themselves with the defence of qualified privilege and the defence of justification (truth). However, the jury rejected both defences. After the jury’s decision, the media organisation took down the defamatory articles about Mr. Gayle.

The court held in favour of Mr. Gayle and awarded him $300,000 in compensation.

Harassment

Case: Clarke v Larard [2018] QDC 247

Mr. Clarke and Mr. Larard were both business owners who each had a business within a shopping centre. There had a history of disputes between the shopping centre’s body corporate, Mr. Clarke, and Mr. Larard about promotional signs.

Mr. Larard sent the following email to four committee members of the body corporate:

Hi John and the committee & North coast management, Can you please send a further formal letter to both Clarkes not to harass or approach me if they have anything to say to myself either through there solicitor or the body Corporate. 

Today while returning from the Bank with my Son Christopher in hand two years old, Gerry confronted me in the carpark 11.19 am I had on purpose since I observed him in front of his unit choose to cross the carpark and void him, but Rather than this happening he cut a line direct to me got in front of my babbling about the size of the sign above Café Beerwah that it was 5 metres same as the sign I uses to have above my own shop, and rather than allow me to pass un hindered he got in front of me insisting I acknowledge the size of the sign Insisting I answer him what size Café Beerwah Sign is? I had to physically push my way past the fool more than once, if I did not have my son and carrying bank deposit book and a shopping bag I would have knocked his head off.

I don’t come to operate my business in Turner Park to be harassed by any other owner as I would not myself interfere with the day to day operation of anyone’s business here, No One here because of the Clarkes vexatious frivolous ridiculous actions should be suffering it about time the body corporate took combines legal action against the Clarkes, these special levy’s hurt everyone financially, and appear not to solve whatever the issues are with the Clarkes but it still seems to be we must all be wrong to make the Clarkes right. 

Please issue them a letter, they have been asked to respect my privacy, my wish not to receive emails and not to speak to me, I am done ever attempting anything reasonable with the Clarkes, in fact perhaps Tracy can advise what’s involved in a court order that they are then not permitted to approach me or any member of my family.

But first up perhaps an immediate letter from Body Corporate, or our legal representation.

The imputations were:

  1. The plaintiff harassed the defendant and his two year old son by repeatedly using his body to block their path as they walked through the Turner Park Shopping Village carpark, requiring the defendant to push the plaintiff to get past him; 

  2. The plaintiff is a fool;

  3. The plaintiff harassed the defendant and his two year old son to such a degree that it would have justified the defendant knocking his head off.

CCTV footage showed that Mr. Clarke did not act aggressively or confrontational towards Mr. Larard. In fact, it was the opposite. Mr. Larard was held to have spoken belligerently and acted aggressively towards Mr. Clarke. The judge held that Mr. Larard Falsely accused Mr. Clarke.

The court held in favour of Mr. Clarke and he was awarded $12,000 in compensation. An injunction order was made against Mr. Larard to restrain him from making further allegations about Mr. Clarke.

Sexist

There are no cases (Jan 2019) which have made it all the way to trial containing the plaintiff’s alleged defamatory imputations: “sexist” or “sexism”.

 

Notes: In Tucker v Echo Publication Pty Ltd & Anor [2005] NSWSC 865, the ‘sexist’ imputation was pleaded as contextual truth by the defendant, however the judge held that there was no substantial truth in the imputation. For other ‘sexist’ imputation cases, Capilano Honey Ltd v Mulvany [2018] VSC 672, was for an interlocutory injunction (an order to stop the defendant from posting any further defamatory imputations before the case proceeds to trial), and Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374 was an application to strike-out imputations. The strongest ‘sexist’ case is Wild v John Fairfax Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 8 August 1997, unreported). The judge held that the imputation was capable of conveying sexism, but it was sent to the jury to decide. There have been no updates since.

 

Case: Wild v John Fairfax Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 8 August 1997, unreported)

In a publication by the Sydney Morning Herald newspaper, there were 3 images and a body of text with the title, “Catherine Lumby, "In Defence of Female Voyeurism and Sexist Ads". The first image contained a billboard with two naked women displaying their backsides. On their backsides were the superimposed words, “They like to watch” and “In defence of female voyeurism and sexists ads. By Catherine Lumby”. A second image contained a female model in lingerie with rope between her teeth. The third image was underneath the billboard image with Mr. Wild looking towards the billboard but slightly away. Mr. Wild was represented to have balding untidy hair with a long grey beard. The image was captioned with, “revealing end of the market... two of the billboards that have attracted complaints of sexism over the past couple of years, but are they?”

 

In the publication, a modified section of Catherine Lumby’s book named Bad Girls was displayed. It said, “while the best advertising seduces us, feminism too often simply wants to tell women what ‘real’ women ought to want”. Further, the article stated, “In fact, there is plenty of evidence that contemporary women enjoy mocking and playing with media stereotypes of femininity in much the same way the gay community has adopted and parodied icons of straightness. The enduring popularity of Madonna with her in-your-face sex goddess posturing is one ex-ample. Lisbeth Gorr's aggressive pseudo-flirt routine is another.”

 

The imputations were:

  1. “The plaintiff (Mr. Wild) is a dirty old man.

  2. The plaintiff is a voyeur.

  3. The plaintiff is a sexist.

  4. The plaintiff is the kind of low individual who would pose in front of a billboard of scantily clad young girls for the purpose of having his photograph in The Sydney Morning Herald.”

 

The judge held that the imputations were capable of being understood. The case was sent to the jury to determine whether the imputations were in fact conveyed in the Sydney Morning Herald and whether the imputations were defamatory of Mr. Wild. However, as there have been no updates since 1997, presumably the case did not proceed to trial.


Thief

Case: Luke v Richardson [2014] WADC 27


Mr. Luke hired a car from a car-hire-company and Ms. Richardson was an employee of that company. Mr. Luke returned the car and Ms. Richardson later requested that he return to the office. When he arrived, she pointed out that the tyres had been replaced with older tyres and that he was responsible for it. ⁣


Mr. Luke became angry. For context, he said that his anger was due to his military background and his cultural heritage from Africa. He reacted to Ms. Richardson by speaking loudly and aggressively and accused her of being a racist. In response, Ms. Richardson also became angry and called him a "thief" and a "criminal". Sometime during this event, Mr. Luke threatened to kill her and burn her. ⁣


The judge found on the evidence that the tyres were in fact swapped. However, there was no evidence that the tyres were swapped by Mr. Luke himself as other people had driven the car. While Mr. Luke was probably liable for breach of contract, this did not suggest that he stole the tyres or that he was a criminal. The court held that Ms. Richardson’s accusations that he was a "thief" and a "criminal" were defamatory. ⁣


Mr. Luke would have been awarded $7,500, however, the judge disapproved of Mr. Luke's accusation that Ms. Richardson was racist. He accused her both during the event itself and during the court hearing. The court held there was no evidence of racism on Ms. Richardson’s behalf. Further, the judge disapproved of the fact that Mr. Luke had threatened to kill and burn Ms. Richardson. Mr. Luke was in the end awarded $1,000 in compensation.

2. Platforms

Facebook

Case: Reid v Dukic [2016] ACTSC 344

Ms. Reid was the CEO of Capital Football and Mr. Dukic was a local football coach. Mr. Dukic had posted about Ms. Reid on his Facebook wall 9 times over 2 years. He had around 400 friends and 5 to 25 people liked each post. ⁣


His posts insinuated that Ms. Reid is dishonest, a national disgrace, gender biased, a liar, is grossly incompetent, a despicable person, similar to a communist dictator, and a whole host of other defamatory insinuations.⁣


Ms. Reid sued him for defamation and claimed that his Facebook posts were "ridiculous" and completely false. However, she said that she became concerned that people were starting to believe him and that she was hurt by the people who 'liked' his posts. She also said that she became so emotionally distraught that it started to affect her home life with her partner. A witness in the case said that Ms. Reid was starting to become warn-down and was losing self-confidence. She eventually resigned as CEO, however, she said her resignation was not related to Mr. Dukic's Facebook posts.⁣


Mr. Dukic did not turn up for court and so he had no defence. He was ordered to pay Ms. Reid $182,700 and he was banned from posting about her on Facebook again.

Email

Case: Stone v Moore [2016] SASCFC 50

Ms. Stone and Mr. Moore were siblings aged in their 70’s. After their mother died, Mr. Moore made two publications which prompted Ms. Stone to sue for defamation. The first publication was an email sent to Ms. Stone’s son’s wife. The second publication was an oral statement made is the presence of his partner, his nephew and the son of Ms. Stone, and the son’s wife.

For the first publication, Frank responded to an email sent by Ms. Stone. He responded by sending an email to Ms. Stone’s son’s wife which was to be forwarded to Ms. Stone. For context, Ms. Stone was estranged from her mother from the age of 19. Futher, Mr. Frank claimed that the estrangement was due to an abortion which Ms. Stone had. The email said:

Carole,

The funeral now has been confirmed for this Friday. I am inviting only the grand-children and great grand-children to what will be a very small private burial.

I do not consider it appropriate for you to attend.

Yes, I am your brother and we have the same Mother, but only one of us has treated her the way a child should treat its mother. You have been worse than indifferent to your Mother’s well being, you have been callous.

If you believe by attending it will go some way towards alleviating your guilt you are sadly mistaken. It will be seen as an act of gross hypocrisy.

If you would like a private viewing I am willing to instruct the funeral parlour it has my approval to do so.

I can be contacted on [mobile number]

Frank

The imputations were, 1. By reason of that estrangement Ms. Stone never treated their mother as a child should. 2. By reason of that estrangement Ms. Stone was worse than indifferent, indeed callous, to [the plaintiff’s] mother’s well-being. 3. Ms. Stone is a hypocrite.

For the second publication, Frank claimed to have been told by his parents that Ms. Stone had an abortion when she was younger. Frank told Ms. Stone’s son about the abortion and about how she was estranged from their mother. However, the second publication was successfully defended by the defence of qualified privilege.

The court ruled in favour of Ms. Stone for the first publication only and she received $2,000 in compensation.

7. Further Reading

The Law Project recommends the following two textbooks on Defamation. Both books address many of the same topics, however, each enters into varying degrees of depth on each subtopic, each address different points which the other does not, and each explain topics in different ways. One book is not better than the other, instead, both should be used as a reference. The two textbooks are:

  1. Rolph, David, Defamation Law (Thomson Reuters, 2016) 

  2. George, Patrick, Defamation Law in Australia (LexisNexis Butterworths, 3rd Edition, 2017) 

More defamation articles by The Law Project:

  1. Is the Imputation Defamatory?

Legislation on Defamation:

Other books which address defamation law in Australia:

  1. Baker, Roy, Defamation Law and Social Attitudes: Ordinary Unreasonable People (Edward Elgar Publishing, 2011)

  2. Balkin, R P and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th Edition, 2013)

  3. Barker, Kit, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th Edition, 2012)

  4. Butler, Des and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th Edition, 2015)

  5. Collins, Matthew, Collins on Defamation (Oxford University Press, 2014) 

  6. Collins, Matthew, The Law of Defamation and the Internet (Oxford University Press, 3rd Edition, 2011)

  7. Davies, Martin and Ian Malkin, Focus: Torts (LexisNexis Butterworths, 8th Edition, 2017)

  8. Foster, Neil, Torts Cases and Commentary Supplement: Defamation and Wrongful Interference with Goods (LexisNexis Butterworths, 2014)

  9. George, Patrick, Monica Allen, Gerard Basha, Stefanie Benson, Joseph Collins, James Mattson, Justine Munsie, Gabriella Rubagotti, Gavin Stuart and James Whiley, Social Media and the Law (LexisNexis Butterworths, 2nd Edition, 2016)

  10. Hitchens, Lesley, Media Law in Australia (Wolters Kluwer: Law & Business, 2014)

  11. McNamara, Lawrence, Reputation and Defamation (Oxford University Press, 2007)

  12. Mendelson, Danuta, The New Law of Torts (Oxford University Press, 3rd Edition, 2014) 

  13. Mendelson, Danuta, The New Law of Torts: Case Book (Oxford University Press, 3rd Edition, 2014)

  14. Pearson, Mark and Mark Polden, The Journalist's Guide to Media Law: A Handbook for Communications in a Digital World (Allen & Unwin, 5th Edition, 2014)

  15. Richards, Bernadette and Melissa De Zwart, Tort Law Principles (Thomson Reuters, 2nd Edition, 2016)

  16. Rolph, David, Matt Vitins, Judith Bannister and Daniel Joyce, Media Law: Cases, Materials and Commentary (Oxford University Press, 2nd Edition, 2015)

  17. Sappideen, Caroline and Prue Vines (eds), Fleming′s The Law of Torts (Thomson Reuters, 10th Edition, 2011)

  18. Stickley, Amanda, Australian Torts Law (LexisNexis Butterworths, 4th Edition, 2016) 

 
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