More than just a damaged ego: defamation in the current climate
From Rebel Wilson to Joe Hockey and Geoffrey Rush, the past few years have been dotted with high profile Australians making claims for damages to their reputation. But you don’t have to insult someone famous to find yourself on the receiving end of a defamation lawsuit – so what does the law say?
What is defamation?
Defamatory material can be words (written or spoken), an image or a gesture. Yes even a gesture can be defamatory.
The material must:
- Identify a person – and this can be found to have occurred even if you don’t use their name;
- Be ‘published’, for example heard or read, by at least one other person; and,
- Do one or more of the following:
- Have the effect of inuring the reputation of the person, by exposing them to hatred, contempt or ridicule;
- Tend to cause the person to be shunned and avoided; and/or,
- Lower the person’s standing in the eyes of others.
It is not simply what is, for example, written or spoken that counts. It is what meanings are conveyed by the words.
In determining the meaning of a publication, a court will consider how the publication would be understood by the hypothetical ‘ordinary, fair-minded reader’. The ordinary, fair-minded reader is not avid for scandal, but is susceptible to a degree of loose-thinking and is capable of reading between the lines.
For example, a high-profile sportsman had blurred-out nude photos of him in the shower taken without consent published in a prominent Australian publication in 1991. The sportsman successfully sued the publication for defamation, arguing that among other things the meaning conveyed that he was happy to expose himself to the public. This was particularly damaging as like many successful players do, the sportsman had secured an additional ambassadorial role as a rugby league junior promotions officer that would see him working alongside young kids. He argued that the publishing of such photos was likely to cause him significant financial loss and harmed his reputation, and he was originally awarded $350,000 in compensation.
You may be engaging in defamation and not realise it.
Have you ever:
- Retweeted a negative comment made about another person? Where defamatory material is re-published, the re-publisher may be sued for the re-publication.
- Photoshopped your boss’ head onto another person’s body and sent it to your colleagues as a joke? An image can be defamation.
- Gossiped at a family BBQ about your cousin’s inability to hold down a job because he is lazy? This could also be defamation – although this is usually considered trivial, and we’ll get to that later.
Revenge porn, cartoons and even satire can all be defamatory.
But what if it is true?
The most common defence to defamation is truth. You can defend an allegation that you defamed someone if you can prove the meanings conveyed are substantially true.
Other defences include:
- Honest opinion – an honest expression of an opinion on a matter of public interest, based on accurate facts;
- Triviality – the material was unlikely to cause harm;
- Qualified privilege – the person had a legal, moral or social duty to convey the material and the recipient had an interest in receiving the information – this can be very difficult in online environments.
Defamation can cost you
The Court can order that you pay monetary compensation (damages) to the person who has been defamed. The amount of the damages will depend on the loss suffered by the defamed person. In a recent high profile case, the amount of damages awarded to four members of the Wagner family was $3.75 million.
The Court can also ask you to:
- Apologise to the defamed person; and,
- Remove all traces of the defamation.
How to avoid defaming someone
You can take steps such as avoiding identifying the person in your communication and being careful when commenting on matters to do with ethics/honesty, race, religion, ethnicity, gender, age and sexual orientation. Once informed that something you have said may be defamatory, take immediate action, including possibly removing, correcting or clarifying the comment.