‘He said’, ‘she said’, ‘they said’.

Defamation cases can attract a lot of attention in the media, particularly when they involve well-known celebrities like Rebel Wilson or Geoffrey Rush.

Defamation cases, however, are not exclusive to those with a high profile. The use of social media has escalated to the point that it is a daily ritual for many, with the potential for defamatory material to transcend across vast audiences within seconds. It has become increasingly important to appreciate the type of conduct that may leave a person or organisation liable for defamation, and to know your rights if you have been the victim of a defamatory publication.

This article provides general information regarding defamation laws in Australia which, apart from some differences, are relatively uniform between the states and territories. Your lawyer can explain the law as it applies to your jurisdiction and assist in commencing or defending a defamation matter on your behalf.

Defamation at a glance

Defamation is the publication of an imputation (insinuation) about a person that damages, or is likely to damage, that person’s reputation. You may have previously heard defamation referred to as ‘libel’ or ‘slander’.

Essentially, Australia’s defamation laws aim to:

• promote uniform laws across the country – apart from some exceptions, defamation laws are generally consistent;
• encourage the efficient, non-litigious resolution of defamation disputes; and
• provide fair remedies for those covered by the legislation who suffer loss of reputation by the publication of defamatory material, without unreasonably restricting freedom of expression.

Claiming defamation

Defamation laws provide protection and compensation for individuals, not-for-profit organisations and companies employing less than ten people, who suffer loss of reputation caused by a defamatory publication. Although the legislation imposes limits on who can claim compensation, any natural person or legal entity including government bodies and companies may be liable for defamation.

A claim for defamation may arise from the publication of defamatory matter about a person. Defamatory material may be in the form of printed material such as an article, report, advertisement, letter or picture or in a spoken form such as an announcement or discussion, or a gesture. The subject matter may be conveyed in printed form or through media such as television, radio, internet or other forms of electronic communications.

How is defamation proven?

Three essential elements must be satisfied to prove defamation, namely, publication, identification, and the existence of a defamatory matter. Additionally, there must be no defence available to the publisher of the alleged defamatory material.

The information must have been published or communicated to a third party and identify the aggrieved person. It is not necessary that the material names the person claiming to have been defamed, provided there is sufficient information that would reasonably identify that person to a third party. A simple example would be material that refers to somebody’s daughter, son, or mother.

The information must contain a defamatory matter. In determining whether material is defamatory, it must be shown that a reasonable person would likely think less of, shun, avoid or ridicule the aggrieved person because of the publication. The intention of the person or entity publishing the material is irrelevant, and the publication need not actually affect the person’s reputation, provided it is reasonably capable of doing so.

Defences to defamation

Various defences may be available in response to a claim for defamation. These typically include:

• honest opinion;
• truth or justification;
• qualified privilege (where material is published during the course of legal, tribunal or parliamentary proceedings);
• innocent dissemination (where the matter was contained in or extracted from a public document).

Generally, the most common defence is justification – that the imputations are substantially true; or that in addition to the defamatory material, the matter contained one or more imputations that were substantially true and reputational loss suffered by the aggrieved person is no worse as a result.

Managing defamation disputes

Following is the general process adopted when pursuing a defamation matter, noting that although defamation laws are mostly uniform across Australia, it is important to obtain advice specific to your jurisdiction and your particular circumstances.

• An aggrieved person issues a ‘concerns notice’ to the person or entity who has allegedly published the defamatory material. The notice must detail the imputations of concern – if details are not properly particularised the publisher can request additional information which should be provided within 14 days.
• After receiving a concerns notice, the publisher may make a written offer to make amends within 28 days. The offer must:

–        identify the notice as an offer under the relevant legislation;

–        include any limitations regarding the offer and the defamatory imputations;

–        include an offer to publish a reasonable correction of the matter in question and, where material has been provided to a third party, an offer to take reasonable steps to inform that party that the matter is or may be defamatory;

–        include an offer to pay the aggrieved person’s reasonable expenses incurred before the offer was made, and the person’s costs in considering the offer.

The offer may include additional remedial action to redress the harm sustained by the aggrieved person including the payment of compensation.

• If the offer is accepted terms of settlement are prepared and the aggrieved person may not proceed further against the publisher with respect to that matter. A person’s refusal to accept a valid offer may be used in subsequent legal proceedings.

Going to Court

Court proceedings must generally be commenced within 12 months from the date a defamatory statement is made.

If successful, a judge will determine the appropriate damages payable which are capped to a statutory limit. Additional damages may only be awarded if the Court is satisfied that the circumstances of the matter warrant such an award.

Conclusion

Defamation matters can be complex and are by nature, generally emotive. Costs can escalate and it is important to obtain considered advice by a lawyer with experience in these types of matters.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

‘Bullying’ is behaviour, whether physical, verbal, psychological or social, that is directed towards a person or group, with the intention to cause harm or fear. When this conduct is carried out using information and communication technology (such as over the internet or via a mobile phone), it is referred to as ‘cyberbullying’.

Depending on the nature, repetition and severity of the behaviour, cyberbullying may constitute a criminal offence.

When is cyberbullying a crime?

Under national laws, the Commonwealth Criminal Code Act 1995 provides that it is an offence to misuse telecommunication services. The ‘use of a carriage service in a way that reasonable persons would regard as being…menacing, harassing or offensive’ is an offence which attracts a penalty of imprisonment for up to three years.

A ‘carriage service’ includes the internet and mobile phone networks.

Consequently, although ‘cyberbullying’ is not specifically defined as an offence under national law, there are various behaviours that could be recognised as an offence, such as using a carriage service to:

• make intentional threats to hurt a person or damage property in circumstances where the threat frightens, intimidates or annoys that person;
• stalk a person – repeated unwanted attention that frightens or intimidates a person, such as unwanted emails, phone calls or text messages;
• menace, harass or seriously offend a person – sending offensive messages or making posts that cause a person to feel anxious, humiliated or disgusted;
• defame a person – publishing / posting false information about somebody else with the intention that it causes serious harm;
• encourage somebody to suicide.

It is also an offence to access another person’s internet account without their consent.

In addition to Commonwealth laws, Australian states and territories have criminal laws that could apply to cyberbullying. These offences generally target stalking, harassment, threatening or intimidating conduct and defamation. Many of these laws were originally aimed towards domestic violence or relationships where there is an imbalance of power, however, in a technological environment, may extend to cyberbullying in certain circumstances.

Various jurisdictions have also introduced, or are in the process of amending or introducing, legislation to target more specific forms of cyberbullying such as the non-consensual sharing of intimate images (or ‘revenge porn’). These laws generally create offences that criminalise the non-consensual recording and threat or actual distribution of intimate images. The terminology and provisions vary between jurisdictions however persons convicted of offences under these laws may face heavy monetary fines and possible prison sentences.

What are your rights if you are cyberbullied?

You have a right to feel safe and not be bullied. There are things that you can do to protect yourself from a cyberbully.

Initially, you could ask the person responsible for the offending material to delete it.

In regard to social media websites, you can usually report bullying posts to the website administrator who will remove offensive material if it violates that website’s terms of use. Also, most social media websites enable you to block someone from contacting you.

If you are receiving bullying phone calls or text messages from someone you may be able to block them from contacting you using your mobile phone settings. You could also complain to your mobile network provider (eg Telstra, Vodafone, TPG or Optus). Your provider may decide to send the cyberbully a warning letter or suspend their phone number or terminate their contract.

If the above does not resolve the problem and you continue to feel that you are being cyberbullied, you should obtain legal advice as soon as possible.

You should keep any evidence of cyberbullying. For example, record the dates and times of any harassing phone calls, or take a screenshot (or print) bullying messages or posts. Your legal adviser can then tell you whether the conduct is likely to be considered criminal. (It also helps prove who was the source of the bullying and its exact nature.)

In the first instance, your legal adviser may decide to write to the person or people involved telling them that their actions could be a crime and letting them know that you will consider going to the police if they do not desist in their conduct. Often, the issue of a letter from a law firm which sets out the potentially criminal nature of the conduct may prompt a perpetrator to re-think his or her actions.

Remedies for cyberbullying

When cyberbullying involves making comments about you or posting pictures which damage your reputation, you may be able to sue the cyberbully for defamation or take other legal action against the cyberbully to obtain an award of damages. You should obtain legal advice if you wish to pursue these actions.

If you are cyberbullied by way of unwelcome sexual attention, sexual threats or discriminatory comments made by someone at your workplace or educational institution, you may be able to complain to your state or territory anti-discrimination body or the Australian Human Rights Commission.

Consequences of cyberbullying

The consequences of cyberbullying can be very serious. In addition to possible criminal charges being laid, a cyberbully may need to answer to claims for compensation and / or defamation.

In addition to phone network providers and website administrators suspending or cancelling a user’s account, they may decide to report that user to the police.

Most education providers and workplaces have anti-bullying policies in place to deal with cyberbullying. Cyberbully workers or students may be dismissed, suspended or expelled.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.