Defamation

Citizens in Australia and other liberal democratic societies enjoy quite broad freedom of speech – however there are still limits on what an individual can write or say. There are some legislative limitations on freedom of speech – for example, the Commonwealth’s controversial Anti-Terrorism Act (2005) contains clauses defining penalties for sedition. Some jurisdictions also have anti-vilification laws that prevent others from abusing, threatening or inciting violence against others on the basis of their race or religion. Another prominent limitation to free speech is defamation. Defamation is the act of saying or writing something negative about another party that lowers their reputation in the eyes of others. Previously defamation was separated into two different actions: slander (things said verbally) and libel (things written, drawn or published). Because libel existed in a more permanent form, it was generally treated more seriously. Changes to defamation law in 2005 have since removed this distinction. Now, any type of communication can now constitute defamation. An individual or organisation does not have to ‘create’ the negative statement to be subject to defamation; simply repeating or publishing it can also make you liable for defamation.

Some examples of possible defamation include allegations of criminal conduct, such as “Jesse stole a car” or “My teacher is a paedophile”. This is arguably the most damaging type of defamation because if heard and accepted by others, it has a detrimental impact on a person’s professional standing and their reputation in the eyes of the community. Claims of professional negligence or incompetence, such as “My home was badly designed” or “The local mechanic is useless and couldn’t fix my car”, can also be defamatory. They can have a detrimental effect on public confidence in the architect’s or mechanic’s business, causing a reduction in their trade and income. Suggestions about someone’s lack of character, honesty or integrity can also constitute defamation. Examples might include statements like “Chris is such a liar” or “She has slept with more than a hundred guys”. Again, these comments can lower a person’s reputation in the eyes of other people.

Defamation requires the plaintiff to initiate legal action, where they must prove the other party made the statements and that the statements were defamatory. In the past, this process has been so time-consuming and costly that most plaintiffs decide against taking action. Both sides in the Popovic v. Bolt defamation case, for example, spent an estimated $A1.2 million combined in legal fees. Many complaints are resolved through alternative dispute resolution before reaching court. Once a matter does reach court, the main issue is whether the statement truly damages a person’s reputation. The question to ask to test this is “Does communication lower or harm the plaintiff’s reputation, hold the plaintiff up to ridicule, or lead others to shun and avoid them?”

A person accused of defamation can call upon several defences, including:

Honest opinion. They can attempt to prove that what they have said or written is an honestly held opinion, reasonably deduced from a certain set of facts. In a defamation action, those facts would be scrutinised and the judge or jury would assess whether the opinion was validly formed and honestly held. In other words, the defendant has to show that they reached a conclusion fairly, and not lightly or maliciously. ‘Honest opinion’ is important for restaurant or product reviewers and columnists who evaluate the performance of politicians.

Truth. Under reforms to defamation law in 2005, the truth is an absolute defence to defamation. If the defendant can prove that the statements they have made are substantially true, the action will not succeed. This can be difficult, however, because courts may not accept particular types of evidence or testimony.

Qualified privilege. This defence is generally intended to protect private professional communications, where one party communicates sensitive information about another party to a third party. A negative reference by an employer, information about an employee or a complaint to the police may constitute qualified privilege – provided it was not made falsely or maliciously. Qualified privilege has also been used by journalists to defend negative information or critical commentary about politicians.

Most Australian jurisdictions also have provision for criminal defamation. As the name suggests, this is a criminal offence that is prosecuted by a police force, not in civil law. Criminal defamation is a complex law that is rarely used and often fails when it is invoked. It is designed to protect public officials from malicious and concerted attacks, and may also be used to protect public safety or prevent a breach of the peace. In 2009 a 19-year-old man from South Australia was charged with running a Facebook group that made deliberate, malicious and defamatory statements about a local police officer. He received a two-year good behaviour bond. In 1999 an Australian writer, Dr Gerard Frederick Toben, was sentenced to nine months in a German prison for criminal defamation, for running a Holocaust-denial website.