Sydney 936804 2


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Sydney 936804 2

  1. 1. Can I say that? A guide to defamation law in Australia Presented by Carol Mazzella and Rina Sheftalovich at the CBAA conference on 24 November 2007
  2. 2. Disclaimer <ul><li>The material in this slideshow has been produced by TressCox Lawyers and has been prepared as general information about defamation law in Australia. It is not intended to provide legal advice and, as such, the content of the material in this slideshow does not constitute legal advice. Further professional advice should be sought before any action is taken in relation to the matters set out in this slideshow. </li></ul>
  3. 3. A snap shot of today’s workshop <ul><li>What is defamation all about? </li></ul><ul><li>What can (or can’t) you say without crossing over into ‘defamation territory’? </li></ul><ul><li>What happens if you are sued? </li></ul><ul><li>What can you say to defend yourself in court? </li></ul><ul><li>Money matters – what could you ‘be up for’? </li></ul><ul><li>Other relevant issues – contempt and vilification </li></ul><ul><li>Checklist for broadcasters - How to avoid crossing over into ‘defamation territory’ </li></ul><ul><li>What is the TressCox Duty Solicitor Scheme? </li></ul>
  4. 4. What is defamation all about? <ul><li>Setting the scene – rationale behind defamation law is to protect reputation whilst at the same time preserving freedom of speech </li></ul><ul><li>What are we concerned with today? – ‘unlawful’ v ‘lawful’ communications </li></ul><ul><li>What do I mean by ‘unlawful’ communications? Communications which have the tendency to lessen a person’s reputation in the community </li></ul><ul><li>What are the consequences of making an unlawful communication? </li></ul><ul><li>How is defamation law governed? </li></ul>
  5. 5. What can you say without ‘crossing over’? <ul><li>What do I mean by publication? Spoken words, gestures, signs, images </li></ul><ul><li>What can (or can’t) you say without crossing over into ‘defamation territory’? </li></ul><ul><li>Before running an interview you need to ask yourself ‘will what I say have the tendency to’: </li></ul><ul><ul><li>- Lower that person in the estimation of others by making them think less of him/her? </li></ul></ul><ul><ul><li>- Injure the reputation of that person by exposing that person to hatred, ridicule or contempt? or </li></ul></ul><ul><ul><li>Cause that person to be shunned or avoided? </li></ul></ul><ul><li>Who is the mythical ‘ordinary reasonable listener’? </li></ul><ul><li>What if you do not name the person during your interview? </li></ul>
  6. 6. What happens when you are sued? <ul><li>Who is usually sued? </li></ul><ul><li>Which court? </li></ul><ul><li>In brief, what is involved in the court process? </li></ul><ul><ul><li>Summons </li></ul></ul><ul><ul><li>Defence </li></ul></ul><ul><ul><li>If you are successful – you can walk away (probably with a costs order in your favour) </li></ul></ul><ul><ul><li>If you are unsuccessful, the judge will order you to ‘pay up’ </li></ul></ul><ul><li>What should I do when Court papers arrive? </li></ul><ul><li>Should I ‘say sorry’? </li></ul><ul><li>What happens if an offer of amends is accepted? </li></ul><ul><li>What happens if an offer of amends is not accepted? </li></ul>
  7. 7. Defences <ul><li>Truth and justification– substantial truth of the ‘sting’. </li></ul><ul><li>Can you prove it? </li></ul><ul><li>Beware of: </li></ul><ul><li>- ‘We are told’, ‘it’s rumoured’ etc. </li></ul><ul><li>- Reports of investigations </li></ul><ul><li>- Broad statements </li></ul><ul><li>Must be able to prove the truth of the imputation </li></ul><ul><li>Moral – research and choose your words carefully! </li></ul><ul><li>Contextual truth </li></ul><ul><li>Absolute privilege – court, parliamentary and other proceedings of public concern </li></ul>
  8. 8. Defences <ul><li>Fair and honest report of proceedings of public concern and publication of a public document </li></ul><ul><li>Fair comment and honest opinion : </li></ul><ul><ul><li>expressed as a statement of opinion not fact; not intertwined with statements of fact; accompanied by indication of facts upon which opinion is based unless notorious or matter submitted for public comment </li></ul></ul><ul><ul><li>on a matter of public interest – not private concern (private life only a public concern if relevant to performance of public duties) – inviting public discussion </li></ul></ul><ul><ul><li>fair and based on proper material – can be biased or irrational, but factual basis must be true or privileged, must be objectively fair and not distorted by malice </li></ul></ul>
  9. 9. Defences <ul><li>Honest opinion of employees and independent commentators – where relate to matter of public interest and based on proper material </li></ul><ul><li>Honest opinion defences are defeated if proved that not honestly held; employer did not believe that it was honestly held by employee/agent at the time of publication; defendant had reasonable grounds to believe that it was not honestly held by a stranger </li></ul><ul><li>Common law qualified privilege – duty to pass on the information and a corresponding duty or interest in receiving it; generally unsuitable for publishers of mass media; defeated by malice </li></ul>
  10. 10. Defences <ul><li>Statutory qualified privilege – designed specifically for media defendants but largely ineffective because of the requirement of reasonableness </li></ul><ul><li>Reasonableness checklist - examples: </li></ul><ul><li>- The extent of public interest </li></ul><ul><li>- Right of reply </li></ul><ul><li>- Sources, prior research, including own publication </li></ul><ul><li>- Nature of the business </li></ul><ul><li>- Whether it was in public interest to publish expeditiously </li></ul><ul><li>Freedom of political discussion </li></ul>
  11. 11. Defences <ul><li>Innocent dissemination – no knowledge of defamatory material and no negligence </li></ul><ul><li>Available to distributors: newsagencies, book sellers, libraries, telephone companies, printers, copiers, service providers. Available to publishers and broadcasters? Not if responsible for publication and publication was authorised (even without knowledge). </li></ul><ul><li>Live broadcasts: common law - no excuse if own choice; legislation - OK if broadcaster has no control over the maker of the statement </li></ul><ul><li>Defence for ISPs and ICHs: not liable if unaware, but if aware – must remove </li></ul><ul><li>Triviality – unlikelihood of harm. E.g. a slightly defamatory joke to a private audience. Unlikely to apply to broadcasters. </li></ul>
  12. 12. Money matters… <ul><li>Who determines damages? A judge will determine damages after the jury has decided that your defences were not successful. </li></ul><ul><li>How is the amount of damages determined? The judge looks at the severity of damage to reputation; the conduct of the publisher; whether there was recklessness with which the publication was made; whether there was failure to make enquiries; the extent and mode of publication (for example based on number of listeners to your program/segment); and the failure to apologise. </li></ul><ul><li>Recent examples of damages awards over the past 5 years range from $12,000 to $500,000. </li></ul><ul><li>Impact of defamation reform. Since defamation legislation was amended such high damages awards are a thing of the past. Under the new Defamation Act there is now a cap of $250,000 for non-economic loss (that is damage to reputation) but this amount can be exceeded if injury to feelings was aggravated by the conduct of the broadcaster. </li></ul>
  13. 13. Other relevant issues <ul><li>Contempt of court – real tendency of interference with due administration of justice </li></ul><ul><ul><li>Contempt by publication – pre-judgment of matters subject to judicial consideration </li></ul></ul><ul><ul><li>Interference with juries, witnesses or parties </li></ul></ul><ul><ul><li>Fair report of proceedings - OK </li></ul></ul><ul><ul><li>Public interest/public safety - OK </li></ul></ul>
  14. 14. Other relevant issues (cont’d) <ul><li>Racial/religious vilification </li></ul><ul><li>- Racial Discrimination Act 1975 (Cth) </li></ul><ul><li>- Anti-Discrimination Act 1977 (NSW) </li></ul><ul><li>- Racial and Religious Tolerance Act 2001 (VIC) </li></ul><ul><li>State Acts – public acts which incite hatred, serious contempt or severe ridicule on the ground of race </li></ul><ul><li>Commonwealth Act – public acts likely to offend, insult, humiliate or intimidate on the grounds of race, colour or national or ethnic origin </li></ul>
  15. 15. Checklist for broadcasters <ul><li>Research topics for discussion during interviews or programs/segments to ensure accuracy of information published </li></ul><ul><li>Avoid on-air debates that lead to personal attacks – stick to known facts </li></ul><ul><li>When making statements of opinion – express as opinion and state the basis for that opinion </li></ul><ul><li>Notify lawyers and insurers if a claim is threatened against you </li></ul><ul><li>Keep records of research, enquiries, what was said and the like </li></ul><ul><li>In-house training workshops for broadcasters, station managers, journalists and those involved in producing interviews or programs/segments. </li></ul>
  16. 16. TressCox Duty Solicitor Scheme <ul><li>What is the TressCox Duty Solicitor Scheme? In a nutshell, member services are entitled to some free legal advice. </li></ul><ul><li>How can the TressCox Duty Solicitor Scheme help you? We offer free legal advice to CBAA member stations on issues concerning members. As a member, you are entitled to free legal advice from a solicitor for 20 minutes over the telephone or 1 hour in person. This will enable you to get a better understanding of the issues at hand and how they can best be dealt with. It may well be that after the initial free consultation you do not require further legal advice or that you make a decision to obtain further legal advice. We would be happy to discuss this with you if the need arises. </li></ul>