Defamation is where one person (defendant) damages another person’s reputation by communicating (by words, writing, photos, video etc) material about that other person (plaintiff). The plaintiff whose reputation has been attacked may commence legal proceedings against the defendant, in order to recover damages and/or restrain further attack.
The object of defamation law is to balance freedom of expression with protecting reputation, and to provide effective and fair remedies for persons whose reputations have been harmed by the publication of defamatory matter. Both civil and criminal defamation exist, however civil defamation is the most common and is more relevant for schools.
The tort of defamation is “strict liability”, meaning that the person publishing the defamatory material need not intend to defame the person whose reputation is subsequently damaged. The result of this is that people (including companies) must be particularly careful in what they publish, to ensure that no defamatory meaning is inadvertently conveyed – as mistake and ignorance are not defences.
There are three elements that need to be established to show that defamation has occurred. These are:
2.1 Is the material defamatory?
The first step in determining whether material is in fact defamatory is to identify the imputations or messages that are conveyed by the publication. This question is to be judged from the perspective of an “ordinary”, reasonable member of the community who sees, hears or reads the publication. Bearing this in mind, there are three ways in which a plaintiff may show that a publication conveys an imputation:
2.1.1 Natural and ordinary meaning
This test is based on the direct, literal meaning of an imputation, for example, “Fred is a thief”, “Jack is a murderer”, and no further interpretation is required. Each member of the community would construe the meaning in the same way, and such statements are almost always considered defamatory at face value.
2.1.2 “False” (popular) innuendo
The natural and ordinary meaning may also be capable of being understood in a defamatory sense, via an inferred or indirect meaning. The published material is not defamatory on its face, but the ordinary person “reading between the lines” may understand it as so. For example, “Matthew cannot lie straight in bed” has an ordinary meaning, but most people would also take it as having an inferred meaning that Matthew tells lies or is dishonest.
2.1.3 “True” (legal) innuendo
Material can also be considered defamatory where it is considered in the context of an extrinsic fact that only some people may know. For example, “Jane Smith was in Westpac Bank at 7:00 pm last night” has an ordinary meaning, but to those that are aware that the bank was robbed at that time, the statement takes on a sinister meaning and implies that Jane is an offender. The “true” innuendo colours an otherwise apparently innocent statement. The defendant must show that at least one other person who knew the additional facts saw/heard the publication.
Once the imputations are identified, the next question is whether they carry a defamatory meaning. This can be established in a number of ways, namely whether the publication in question:
- exposes the plaintiff to hatred, contempt or ridicule;
- has lowered the reputation of the plaintiff in the estimation of ordinary members of society;
- has caused people to shun and avoid the plaintiff; and/or
- holds the plaintiff up in a ridiculous light.
Again, it is the standard of the ordinary, reasonable, fair minded person in society – the average “person on the street”. A judge will determine if the material in question is capable of bearing a defamatory meaning using any of the tests, and will then explain the tests to the jury (if the plaintiff or defendant has elected that the matter be tried by a jury). It is then up to the jury to determine if the material was in fact defamatory, on the facts.
2.2 Has the defamatory matter been published?
Publication is an essential element of any defamation action. In terms of mass media there is generally no question whether the material has been published or not, it is more likely to be an issue where the publication has only been to a small audience.
Publication need not be by way of media. It can be a conversation, a letter, an email or a Facebook entry – so long as it has been published to a person or persons other than the plaintiff. Further, it must be reasonably foreseeable that publication might occur (i.e., it is not reasonably foreseeable where the defendant sends a letter, but it is opened by a person other than the person to whom it is addressed). If the recipient of the communication is incapable of comprehending the communication (for example, a letter to a blind person, speaking in a foreign language) then there has been no publication for the purposes of defamation.
2.3 Does the defamatory material relate to/identify the plaintiff?
The plaintiff must prove that they are the person who has been defamed. This need not be by formal identification (for example, naming), but can arise from the inclusion of a number of characteristics that enable a person to be identified. This is very often self-evident, in that a person is named or their photo is displayed, but people can be identified by any number of means (for example, the Prime Minister, the Principal of St James School, a nickname etc).
As a general rule a group of people cannot sue for defamation, unless the defamation in question is deemed to be referring to a specific person or persons. For example, a statement of “all private school teachers take bribes from parents” would be too broad, but “all Maths teachers at St James School take bribes” would be sufficiently narrow to sue on. In a statement such as “either John or Betty is the murderer”, both John and Betty could sue (as it puts them both under a cloud of suspicion, and the group is small enough and sufficiently certain).
An action for defamation can be brought by any living person. A corporation has no cause of action for defamation under the Defamation Act 2005 (the “Act”), unless it is an “excluded corporation”. A corporation is an excluded corporation if it is not a public body (being a local government body or other governmental or public authority) and if:
- the objects for which it is formed (i.e., under its constitution) do not include obtaining financial gain for its members (which would need to be determined on a case-by-case review of an organisation’s constitution, and could include some private schools); or
- it employs fewer than 10 persons and is not related to another corporation.
This exception would allow many organisations (for example, not for profit organisations) to sue for the defamation of that organisation.
A defendant can be liable for defamation whether or not they intended to defame the plaintiff, and whether or not they intended to refer to the plaintiff. As discussed above, while it is a strict liability offence, it must be shown that the defendant intended to publish the material, or published it recklessly or by omission. Where the defamatory material has been published by the mass media, any of the people involved in the publication can be sued.
Liability can arise for schools as employers (vicarious liability) whose employees have published the material, and also where a third party repeats defamatory material published by another – each republication is considered a separate defamation which the plaintiff can sue for. A person or entity can even be sued for its inactivity. For example, if a school is made aware that there are posters on school property (or notices on a bulletin board) that are defamatory and the school does not remove these posters, the school can be sued due to its inaction. In the case of Urbanchich v Drummoyne Municipal Council1, someone (not the council) had placed posters in bus shelters that imputed that Mr Urbanchich was a war criminal. Mr Urbanchich’s lawyers contacted the council alerting it to the posters, but the council failed to remove them for some time (around 1 month). The council was considered to have approved of/promoted the continued presence of the posters on the shelters due to its failure to remove the posters. The Court found that where the defendant:
(a) had been notified of the existence of the defamatory material;
(b) had been requested to remove the material or to obliterate its contents;
(c) had the ability to do so; and
(d) had failed within a reasonable period to do so,
this was capable of amounting to publication by the defendant. Mr Urbanchich could also sue the person who posted the posters, if that person could be found and if they were “worth” suing (i.e., had the means to pay).
It is up to the plaintiff to prove that the material is defamatory, and the defendant is then able to raise a number of defences. These defences include:
- Truth (justification);
- Absolute privilege (published during legal proceedings or in parliament);
- Qualified privilege (varies, see below, includes public documents);
- Fair report for proceedings of public concern;
- Honest opinion (must be in the public interest and based on proper material);
- Innocent dissemination (eg, librarians, newsagents); and
- Triviality (plaintiff unlikely to sustain harm).
For schools, the defence of qualified privilege is one of the more relevant. A circumstance of qualified privilege is where the law recognises that a publisher may have an interest which outweighs the right of the plaintiff to his or her untarnished reputation. It is typically the relationship between the plaintiff and defendant that establishes the “occasion” of the publication as attracting the defence of qualified privilege. A privileged occasion includes where the recipient has an interest or apparent interest in having information on the subject, the matter is published to the recipient in the course of giving information to the recipient on that subject, and the conduct of the defendant in publishing that matter is reasonable in the circumstances.
For example, statements made by parents about staff performance would fall within this defence, as the school has a duty to receive the comments and the parents have an interest in making them – even if the statement would otherwise be defamatory. School reports would also be covered. The defence may be defeated, however, where the statement was motivated by malice.
Perhaps the most commonly used defence is the defence of truth, i.e. the defamatory statement is actually true.
Schools must be aware of defamation and potentially defamatory situations, both to avoid liability, and to protect students and teachers. All information disseminated by schools should be carefully vetted to ensure that no defamatory material is included, and it should be reinforced that a person need not be named in order to be defamed – a photo can be defamatory, as can a statement that refers to a person (by implication, nickname etc). Care should also be taken in providing references for employees, even though it is possible that a defence of qualified privilege could be raised. Further, school computer and email policies should state that defamatory matter must not be transmitted in any circumstances.
In this era of cyber-bullying, schools must be particularly aware and pro-active where staff are informed or otherwise become aware of such conduct. Recent examples in the media show that students could potentially be liable for defamation where they have cyber-bullied other students, should those defamed students take action. Posts on Facebook, MySpace etc would certainly be considered to be “published” for the purposes of establishing defamation. If anything is posted on a school noticeboard (electronic or otherwise) or any other source (including any physical part of the school premises) that the school has control over, and the school is aware or informed that it contains imputations that could be defamatory – the school should remove that post immediately. If not pro-active, the school could be liable for defamation by omission, in that its failure to remove the item has promoted the continued defamatory publication.
The law of defamation is complex and can be unpredictable, and defamation actions can be particularly costly, both in legal fees and in awards of damages. The best strategy for schools is to vigilantly review all material it publishes (and remember, “publishing” can be via conversation, in writing etc), and act promptly and positively if it is ever made aware of a potentially defamatory situation.
For further information or advice on defamation, please contact Leneen Forde, Partner, Cornwall Stodart on 03 9608 2243 or l.forde@cornwalls.com.au or Anna Smits, Lawyer, Cornwall Stodart on 03 9608 2103 or a.smits@cornwalls.com.au
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