‘STICKS AND STONES MAY BREAK YOUR BONES, BUT NAMES CAN NEVER HARM YOU.’ DEFAMATION

You have probably heard the old saying: ‘Sticks and stones can break my bones, but names will never hurt me.’ The tort of defamation suggests that names can hurt, and saying something that harms a person's reputation can result in a civil claim being made.

WHAT IS DEFAMATION? Definition: Defamation is written or verbal communication that lowers a person's reputation in the eyes of others in the community

IN ORDER FOR A PLAINTIFF TO BE SUCCESSFUL IN PROVING DEFAMATION, THEY MUST PROVE ALL OF THE FOLLOWING: 1.) the statement was defamatory 2.) the defamatory statement refers to the plaintiff 3.) the defendant communicated the defamatory statement to a third person Consider the following:

The tort of defamation protects people from unjustified attacks on their good name. Communication is defamatory if reasonable people would form the opinion that the communication resulted in a person's reputation being damaged. For communication to be defamatory it must damage the reputation of the person or entity among a significant section of the community and not just a limited section of the community. Defamation law is found in the common law and the Defamation Act 2005 (Vic.). To succeed in a claim of defamation, the plaintiff must prove the presence of two elements.

Have you ever watched television and wondered if the commentator's statements are true? In 2011, Labor candidate Nicole Cornes took action again Network Ten and comedian Mick Molloy. She was awarded $ after successfully arguing that her reputation was damaged as a result of comments made by Molloy on the Before the Game show about her fidelity.

PUBLICATION. The first element requires that the publication is communicated to at least one other person besides the person being defamed. So, if you wrote a false statement about someone, but only gave it to that person, defamation would not be published. It would, however, be deemed to be published if you were to put it up on the internet for others to read.

IDENTIFICATION. The second element requires that the defamatory statement identifies the plaintiff. All that is required is that a reasonable person would conclude that the statement refers to the plaintiff. There is no such thing as group defamation. For instance, it would not be defamatory to say all doctors are money hungry. However, an article in a newspaper making such comments that included a photograph of a doctor who could be identified, could be defamatory.

REMEDIES The main remedy for defamation is an award for damages to compensate for the harm caused. The Defamation Act provides that in awarding damages, a court must ensure the amount reflects the degree of harm suffered by the plaintiff. The amount of damages for non-economic harm is capped and a plaintiff cannot be awarded damages that are exemplary or punitive. An injunction also may be used as a remedy in defamation cases. An injunction is an order from the court to prevent a statement that may be defamatory from being published. Some would argue that an injunction serves to gag the defendant by, for instance, stopping a particular show from being televised.

CASE: FORMER PRISONER AWARDED DAMAGES - HABIB V. NATIONWIDE NEWS PTY LIMITED [2010] NSWSC 924 In this case, Mamdouh Habib sought damages as a consequence of an article published in a Sydney newspaper, The Daily Telegraph. Habib, a former detainee in the American detention centre in Guantanamo Bay, Cuba, argued that the article contained implied meanings that were defamatory. The judge found that Habib was entitled to only minimal damages for hurt to his feelings as he was not persuaded that Habib's reputation was significantly damaged by the article. Consequently, Habib was awarded $5000.

DEFENCES TO DEFAMATION

JUSTIFICATION Applies when the material published is justified because it is the truth. If this defence is accepted, there can be no defamation as the plaintiff's reputation has not been damaged. The published statement is merely stating what is already known.

CONTEXTUAL TRUTH Applies when the defendant can show that, in addition to the material complained about by the plaintiff, the publication contains one or more statements that are substantially true. For example, if a newspaper publishes an article that is substantially true, but states amongst other matters that Bill Smith has been convicted of assault when in fact he has been convicted of armed robbery it is unlikely to harm Bill Smith's reputation.

ABSOLUTE PRIVILEGE Is a complete defence that enables people to say whatever they want without being liable for defamation. The Defamation Act limits the number of situations where absolute privilege applies. These include statements made during parliamentary proceedings and publications made in the course of a proceeding of an Australian court or Australian tribunal. A politician who makes defamatory comments during a parliamentary sitting is able to claim the defence of absolute privilege. However, if the same politician makes the same comments outside the parliament, the defence of absolute privilege does not apply.

FAIR REPORT OF PROCEEDINGS OF PUBLIC CONCERN Applies when the defendant publishes a fair report of any proceeding of public concern including parliamentary proceedings, public inquiries, local government proceedings, a public shareholders meeting, or proceedings of a sports or recreation association.

QUALIFIED PRIVILEGE may be argued in a limited range of situations where the defendant can show that the persons receiving the publication have an interest in the subject and that the defendant's conduct in publishing the material is reasonable in the circumstances. Situations where this defence may be used include comments made in the course of writing a reference for someone, and statements made to the police. However, a defendant who abuses the privilege by being motivated by malice (spite) is not protected by this defence.

BEWARE CYBER DEFAMATION A Victorian man paid $ compensation for defamatory comments he made anonymously on an internet stock market forum. The postings contained statements that the plaintiff, a company director, alleged brought him and his company into hatred and ridicule. The Western Australian lawyer, acting on behalf of the plaintiff, warned that individuals who think they can make anonymous comments on the internet can in fact be hunted down and caught out. In Victoria, the Defamation Act provides that a corporation cannot sue for defamation unless that corporation employs less than 10 persons or is a not-for- profit organisation.

HONEST OPINION applies if the defendant can show that: (a) the matter was an expression of opinion rather than a statement of fact; (b) that the opinion relates to a matter of public interest; (c) that the opinion is based on proper material. Critical statements made by a reporter as part of a review of an art show, a music performance or a movie can be regarded as an honest opinion.

TRIVIALITY applies in circumstances where it is unlikely that the plaintiff will sustain any harm. An example is publication of material that is mildly offensive to the plaintiff.

RESTAURANT CRITIC SUED The Coco Roco restaurant opened in 2003 and food critic Matthew Evans dined there twice. He produced a review that rated the restaurant 9/20, declaring it expensive, with half the dishes not edible, saying service was inconsistent and stating that there was little value for money. He did concede that the harbour view was nice. He concluded his review by stating that, ‘Coco Roco is a bleak spot on the culinary landscape’. 208 After years of legal wrangling, the New South Wales Court (Gacic v. John Fairfax Publications Pty Ltd [2009] NSWC 1403) found in favour of Fairfax and Evans, the food critic. The defence of ‘honest opinion’ had been established and the defence of truth was also established in relation to bad service at the restaurant.

CASE STUDY 8.3 Questions 1, 2, 5