Defamation & Protecting Reputation

“ On average, the High Court hears one or two defamation cases each year. In 2010, the defence of common law qualified privilege was reviewed in Aktas v Westpac, a case involving a mistake by Westpac Bank in dishonouring trust account cheques issued by a licensed property manager. By returning the ... ”

“ Defamation legal principles remain grounded in the common law and the uniform Defamation Act 2005 provides that the operation of the common law as regards the tort of defamation is not affected by the new statutory regime except to the extent that the statute provides otherwise. The starting point ... ”

“ Defamation claims over offensive but innocuous remarks are serious threats to the credibility of the justice system, especially in cases where a plaintiff has suffered no real harm. These claims are likely to be relegated to legal history anytime soon so you need to think twice about commencing a ... ”

“ While the United States Constitution includes the right to free speech in the First Amendment, there is no comparable constitutional right in the United Kingdom or Australia. In the UK, section 10 of the Human Rights Act 1998 includes the right to freedom of expression subject to such restrictions ... ”

“ A plaintiff will inevitably read more into a defamatory publication than the defendant with heightened sensitivity about possible meanings that could be derived from the publication. The ordinary reasonable reader or viewer as represented by the jury will generally find a meaning or meanings in ... ”

“ Journalists – and writers more generally – will usually send a list of questions to anyone they are writing about who is likely to object to what is being said. If you defame a person without first giving them the opportunity to respond to what you are saying then you will pay aggravated damages ... ”

“ All common law defences with the exception of truth and absolute privilege are defeated by malice. Malice at common law includes improper motive, ill will, knowing a publication was false and reckless indifference to truth or falsity. Like the common law defences, each of the statutory defences – ... ”

“ For the defence of fair comment to succeed, there must be evidence that the comment represents the defendant’s own honestly held point of view. The test is whether a fair-minded person could honestly express the opinion in question, not whether the opinion is agreeable or even rational. In fact, ... ”

“ In order to obtain the benefit of the qualified privilege defence at common law, you should be careful to publish defamatory material only to people with whom you have a common or reciprocal interest involving your business or private affairs and in circumstances where you have a legal or moral ... ”

“ There are severe cost penalties under Australian law for running an unsuccessful truth defence in defamation proceedings. You will probably be advised to drop the defence if other defences are available such as comment and qualified privilege. By all means plead truth initially to put the ... ”

“ In a case where there is little doubt that the plaintiff has been defamed, a grovelling and apologetic defendant is more likely to avoid proceedings than an aggressive and unapologetic one. Either way, the wise defendant will offer to make amends by following the procedure laid down in Part 3 of ... ”

“ In the course of completing this work, I have laboured the point that a gross injustice seems to occur in circumstances where costs of a million plus dollars follow a paltry damages award to the plaintiff of a few thousand dollars. Despite the offer to make amends provisions in the uniform ... ”

“ Publishing material that constitutes an attack on a person’s fundamental self-worth may be so gross as to amount to a breach of their privacy. The harm done by publicly broadcasting explicit sexual material without the permission of the person depicted in the material has long been regarded as so ... ”

“ At the time of writing, I was consulted by a woman who worked for a state government minister. Her privacy rights had been breached when confidential information about the cessation of her employment was inadvertently circulated to a number of employment websites and parliamentary email addresses. ... ”

“ Defamation practitioners will be familiar with the case where a business or professional client wants to stop a previous customer or former client behaving badly, for example, by publishing defamatory material on the internet. Can you get an injunction to stop the internet publication without ... ”

“ Another good alternative to defamation proceedings is the misleading or deceptive conduct action under section 18 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth) formerly section 52 of the Trade Practices Act 1974). The usual applicant will be a ... ”

“ Malicious or injurious falsehood is a tort that provides a remedy where the defendant maliciously publishes false material causing special damage to the plaintiff or the plaintiff’s property or business. The action is frequently prosecuted in conjunction with a claim for misleading and deceptive ... ”

“ In October 1975, the Racial Discrimination Act (Cth) became law which had the effect of implementing the United Nations Convention on the Elimination of all Forms of Racial Discrimination, a treaty Australia had signed but not ratified. The Racial Discrimination Act marked the official end of the ... ”

“ The vast majority of print media organisations in Australia are members of the Australian Press Council, a self-regulatory body with responsibility for dealing with complaints about Australian newspapers, magazines and associated digital outlets. Although the Council is funded mostly by the major ... ”

“ The task of regulating radio and television broadcasts presently falls to the Australian Communications and Media Authority (ACMA), a statutory body established under the Broadcasting Services Act 1992 (Cth). All broadcast media is covered by the legislation with the exception of the national ... ”

“ As the name suggests, criminal defamation requires an element of criminality that is not found in the tort of defamation, although mens rea is not required at common law as the offence depends on the effect of the words, not the intention of the person accused of the crime. Criminal defamation at ... ”

“ The laws of defamation have been part of the social fabric of human co-operation and development since ancient times. Both Greek and Roman law recognised the importance of protecting reputation. In Jewish tradition, the prophet Moses is known as ‘The Lawgiver’ for delivering to the people of ... ”

“ You can say or write what you please about a person, but you will not be defaming them unless you publish your attack to a third party. If you write the person a letter or send them an email, you should include the words ‘private and confidential’ at the beginning of the text in case a third party ... ”

“ A cause of action in defamation arises when defamatory material is published about an identifiable person. It is not necessary to name the person to defame them so long as they can be identified from the defamatory material. If the publication can reasonably be interpreted as referring to the ... ”

“ At common law, any person, group, community, organisation or corporation involved in publishing defamatory material can be sued in defamation. The author of the material can be sued as well as the editor of the material, the typesetter, the printer, the proprietor of the publisher and the ... ”

“ Some solicitors will write to a prospective defendant and say they have instructions to sue for $750,000 – the maximum civil claim in the District Court – an amount that often shocks their client no less than the addressee of the letter. Personally, I would set out the defamatory imputations in ... ”

“ One of the first cases to be decided under the new uniform defamation law was the Mercedes Corby case. In February 2007, the plaintiff, Mercedes Corby, was the subject of four separate broadcasts on the Channel Seven television network in Sydney about her relationships with her sister, the ... ”

“ The question of costs in the Mercedes Corby case is not entirely a matter of speculation due to an application by Tom Hughes QC for the defendant six weeks before the trial seeking security for costs against the plaintiff as well as an order that the proceedings be stayed until the security was ... ”

“ There are two answers to this question depending upon whether your case settles or goes to trial. In November 2009 there were 74 defamation cases in the New South Wales Supreme Court common law list. In the District Court in 2011 there were 24 lodgements of defamation cases and 29 finalisations. ... ”

“ Anyone intending to publish material that might be defamatory could consider making pre-publication inquiries of the person likely to be offended by the contentious material. A letter, email or other form of communication prior to publication should clearly state that its purpose is to address the ... ”

“ As a general rule in civil law, you need to be circumspect about apologies or expressions of regret as they will usually imply an admission of fault or responsibility. But that said, all States and Territories now provide statutory protection in varying degrees when a person apologises or ... ”

“ Nobody seems to know why there needs to be two separate regimes in place in defamation and other civil law disputes to facilitate settlement offers. In order not to fall foul of either regime, most lawyers make multiple offers of compromise that comply with the separate requirements for both Court ... ”