Defamation in the Online Era: How to recognise it and protect your business reputation

Introduction

With an increased use of online mediums in our everyday lives, individuals can communicate to a great number of people quickly and with little effort. While this can assist with building your business, on the flip side, aggrieved persons (rightfully or wrongfully so) can also easily publish statements about you to an audience.

JHK Legal appreciates that your business reputation is important. Understanding when you have been defamed and seeking legal assistance in a timely fashion to minimise any harm caused is therefore imperative in the “online era”.

Please note while this article is limited to the law in Queensland, JHK Legal can provide advice on defamation in each jurisdiction.

What is defamation?

Defamation can be defined as the publication or communication of a defamatory meaning about you to a person other than yourself. This definition also includes your corporation, which includes anybody corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body) if:

1. the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
2. it employs fewer than 10 persons and is not related to another corporation; and the corporation is not a public body.

The Defamation Act 2005 (Qld) (“the Act”) governs defamation proceedings in Queensland. While the common law tort of defamation is still the basis for an action in defamation, the Act has amended procedural and legal principles.

Elements

1. Publication: Publication of the statement to a third party (e.g. by email to someone that is not you). Damage is not required to be proven to succeed.
2. Identification: The defamed party must be able to be identified in the publication.
3. Defamatory imputation: The statement published conveys a defamatory meaning – asserting or attributing to a person or corporation an act or characteristic. A statement can convey more than one imputation and must be of a kind that, in the minds of ordinary people, would injure a person’s or corporation’s reputation by:

(a) disparaging the person or corporation by conveying something to their discredit;

(b) causing others to shun or avoid the person or corporation or exclude them from social interaction; or

(c) subjecting the person or corporation to hate, ridicule or contempt.

For example: that a person lacks knowledge, skills, qualifications, capacity or judgment in the conduct of business.

The imputation can be determined from either the natural/ordinary meaning of the words or from what is implied by the words.

Defences

Defences in the Act and at common law include:

1. Justification: A complete defence found at both common law and in the Act if the individual can show that the imputations (if more than one, it must be all) carried by the defamatory statement are substantially true.
2. Honest opinion: This defence is available where it can be demonstrated that the information/statement was based upon an honestly (or fairly) held opinion or belief, and related to a matter of what is narrowly defined as public interest.
3. Triviality: A defence in the Act where “‘the circumstances of publication were such that the plaintiff was unlikely to sustain any harm” where the circumstances can include the time the statement was published, to whom and how the statement was published. It is not relevant what actually happened, but what was likely to happen because of the circumstance at the time the statement was published. It is not important that anyone actually read or heard the defamatory statement.
4. Qualified privilege: A common law defence relied upon when the individual can demonstrate that the publication to another person was in discharge of some private or public duty for the purpose of pursuing or protecting some private or public interest. There must be a connection between the defamatory matter and the public interest sought to be protected. The Act requires the publication to be reasonable. A qualified privilege defence can be defeated by the person/corporation that was defamed if demonstrated that the individual made the statement maliciously.
5. Absolute privilege: Appearing at both common law and in the Act this defence can be claimed in regards to statements made in the context of parliamentary or judicial (or quasi-judicial) proceedings.
6. Defence to make amends: If a Concerns Notice is issued (see below) informing the publisher of the defamatory imputations, an offer to make amends may be made. If it is not accepted, it is a defence to an action if the offer was made as soon as practicable after becoming aware that the matter is or may be defamatory, if at any time before the trial the individual was ready and willing, on acceptance of the offer, to carry out its terms and the offer was reasonable.
7. Contextual Truth: This defence can be raised where in addition to defamatory imputations, the matter contained one or more imputations that are substantially true and as a result of the substantial truth of the subsequent imputations, you/your corporation’s reputation was not further harmed by the defamatory imputations.
8. Publication of public documents: This defence can be utilised if the individual can prove that the defamatory matter was contained in, or a fair copy, fair summary or fair extract from, a public document. There is a lengthy definition regarding what may be a “public document” which includes a judgment by a court and public records.
9. Fair report of proceedings of public concern: If the individual can prove the statement/s with the defamatory imputations was, or was contained in, a fair report of any proceedings of public concern, this defence may be relied upon. Public proceedings can include parliamentary bodies, and domestic courts. This defence can be defeated if it can be proved that the defamatory material was not published honestly for the information of the public or advancement of education.
10. Innocent dissemination: This defence can be relied upon where the defamatory publication was disseminated by an employee or agent of a subordinate distributor (not the first/primary distributor of the matter, not the author or originator and did not have any capacity to exercise editorial control over the content or its publication, before it was first published). There is a list in the Act of when a person is not the first or primary distributor of the matter that includes a bookseller and a broadcaster of a live program. The individual must have been unaware that the publication was defamatory and this lack of knowledge must not have been due to the individuals’ negligence.

There are also other common law defences including consent and illegality that require more unusual circumstances.

What can you do?

JHK Legal can send a Concerns Notice to the individual that has defamed you/your corporation informing them of the defamatory imputations and inviting them to make an offer for amends, which is required to include an offer to:

1. publish a reasonable correction;
2. tell any parties to whom the defamatory matter was published that the matter may be defamatory;
3. pay your reasonable expenses before the offer was made and considering the offer to make amends.

We will also recommend an offer to publish an apology be included.

Should a reasonable offer not be forthcoming, we can advise on commencing proceedings. Traditional remedies are an injunction and an award of damages (including both economic and non-economic loss).  You/your corporation are not required to prove loss, rather there is an entitlement to damages once it has been proven that you/your corporation have been defamed. Damage can however be reduced where the individual has published an apology and/or a correction.

Author: Alicia Auden, Senior Associate

Published: December 2014