At the time of authoring this article, Deborah Doctor was a Solicitor at Allens Arthur Robinson. Thanks to the support of Allens Arthur Robinson, Deborah was seconded to Arts Law for 6 months.
A Quick Recap
Defamation is a communication from one person to at least one other that lowers or harms the reputation of an identifiable third person, where the communicator (the publisher) has no legal defence. The law of defamation aims to strike a balance between the right to free speech and the protection of reputation from indefensible attack.
For a defamation action to succeed, the person complaining of the defamation (the plaintiff) has to prove three things:
- that the communication has been published to a third person;
- that the communication identifies (or is about) the plaintiff; and
- that the communication is defamatory.
For more information on these three elements and possible defences to defamation please refer to Arts Law's Information Sheets The Law of Defamation – For Material Published After 1 January 2006 or The Law of Defamation – For Material Published Before 1 January 2006.
The Uniform Defamation Laws
On 1 January 2006, new uniform defamation legislation came into force throughout the States of Australia and in the Australian Capital Territory. The Northern Territory has yet to enact the uniform defamation legislation but will soon do so.
Prior to the introduction of the uniform legislation, each State and Territory had its own defamation laws. The effect being that a publication actionable as defamatory in one State was not necessarily actionable in another State.
Each of the States has passed a Defamation Act 2005. Each of the States' legislation is modelled on the proposed uniform defamation laws developed by the Standing Committee of Attorneys General. Some key features of the new legislation are as follows:
Companies Cannot Sue
Generally a corporation cannot sue for defamation. A corporation will only be able to sue for defamation if:
- the corporation is a not-for-profit organization; or
- the corporation employs less than 10 people and is not related to another corporation and that corporation is not a public body.
The proposed section does not preclude any individual associated with a corporation from suing for defamation in relation to the publication of a matter that defames both the individual and the corporation.
The Dead Cannot Sue
Except for Tasmania (where it is unclear), neither the dead nor their representatives can sue for defamation. This is irrespective of whether the publication was made before or after the defamed person's death.
Offers to Make Amends
The new legislation provides a framework for the settlement of disputes. The framework allows the parties to make an offer to make amends. This offer may be made at any time up to 28 days after the publisher of the alleged defamatory statement has been given the notice of the complaint or if a defence has been served.
The offer to make amends must be in writing, include an offer to publish a reasonable correction of the matter in question and an offer to pay expenses incurred by the aggrieved person. The offer may also include any other kind of offer that will rectify the harm sustained by the aggrieved person.
If the offer is accepted and a publisher carries out the terms of the accepted offer, the aggrieved person cannot continue defamation proceedings.
If a publisher makes a reasonable offer as soon as is practicable and the offer is not accepted, the offer will constitute a defence to an action for defamation. All statements and admissions made in connection with an offer are not admissible in court and an apology will not constitute an admission of fault. Moreover, if a plaintiff rejects what a judge considers to be a reasonable offer, a court will not order a publisher to pay their legal costs.
There is a new cap on damages for non-economic loss of $250,000. A court will not be permitted to order a defendant to pay damages in excess of the cap unless it is satisfied that the circumstances of the publication of the matter to which the proceedings relate are sufficient to establish aggravated damages. Aggravated damages are not intended to punish the publisher but are extra compensation for the plaintiff in circumstances where the publisher's conduct was particularly reprehensible and injurious to the plaintiff's reputation.
Proceedings can only be commenced within one year from publication of the defamatory material. The Court does however, retain the discretion to extend this limitation period in certain circumstances.
Defence of Justification
The new Acts amend the defence of justification. Some States previously required that to establish the defence of justification, the statement not only had to be true but the subject matter also had to be one of public interest or the publication had to be of public benefit. The new Acts contain a defence of justification, which provides a complete defence to an action for defamation if the publisher proves that the defamatory imputations complained about are substantially true. The term substantially true is defined in the Acts to mean true in substance or not materially different from the truth.
Defence of Contextual Truth
The uniform legislation also provides for a defence of contextual truth. The defence deals with the case where there are a number of defamatory assertions carried by a matter but the plaintiff has chosen to proceed with one or more but not all of them. In that case, the publisher may have a defence of contextual truth if the defendant proves that one or more of the assertions not pursued by the plaintiff is substantially true and the defamatory assertion that is pursued does not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. This extends the previous position because it applies even if the contextual imputations are separate and distinct from the defamatory imputations of which the plaintiff complains – there does not need to be a ‘common sting' between the contextual and defamatory imputations.
Common Defamation Questions
Arts Law gets many callers wanting advice on defamation. One of the most common defamation questions is from artists wanting to document a true crime (usually in a novel or a film). One of our recent callers was writing a novel based on a true crime. The caller had changed the names of the characters and wanted to know whether this was enough to protect them from a defamation action.
As stated above, for a defamation action to succeed the plaintiff has to prove that the plaintiff was the person identified by the communication. Obviously this is most straightforward when the person is named, but other information may be sufficient. A person may be identifiable by the surrounding circumstances and events (e.g. the perpetrator), because of a relationship (e.g. the perpetrator's brother) or because they hold a unique position (e.g. the head police officer). The use of false names will not protect you from defamation proceedings if the plaintiff can be identified by other means.
Another common inquiry comes from artists who feel that negative comments published about their artwork are harmful to their reputation and want to know whether they could pursue a defamation action. In cases of this type, it depends whether the publisher is able to rely on the defence of honest opinion (fair comment). To take advantage of this defence the publisher must be able to prove three things:
- the communication must be comment/opinion;
- the facts upon which the opinion is based must be stated unless they are widely known. This is required so that the those exposed to the allegedly defamatory publication are able to form their own views on the facts; and
- the communication has to be on a matter of public interest. Matters of public interest have been held to include criticism of books, plays, films and other works that are placed in the public arena.
One more common query that the lawyers receive at Arts Law is from artists wanting to create works that satirise prominent public figures. The law of defamation is unclear in relation to humour, cartoons and satire. The fact that the allegedly defamatory publication is intended as a joke may not be enough to protect the publisher from a defamation action if there are underlying defamatory meanings understood by the audience. A classic example of this was the case brought by Pauline Hanson in relation to the song ‘Backdoor Man' written by Simon Hunt (aka Pauline Pantsdown). Hunt put together the song from various statements and speeches made by Hanson and set it to a dance beat. The words were rearranged so as to satirise the One Nation leader.
Hanson's lawyers argued that the song contained a number of defamatory meanings, such as: Hanson engages in unnatural sexual practices; and that she is a pedophile a homosexual, a gay activist and a prostitute. The ABC on the other hand, argued that the song is satirical and is not stating facts about the plaintiff. They argued that the song was not to be taken literally and was a comment on Hanson's policies and style of argument. Despite the satirical intention, the Supreme Court of Queensland found against the ABC and upheld an injunction which prohibited the song from ever being played again.
While the law of defamation in Australia has been simplified, in that it has been made consistent between the different States and Territories, it is by no means a simple area of law. For more information please refer to the Arts Law website or contact Arts Law for specific legal advice.