By Ben Aulich
For more than 100 years, the word ‘defamation’ has carried the clear understanding that the legal battleground under consideration was dominated by the mass media – newspapers, television and radio and their concurrent website publications.
For all of that period, the agitation for law reform has come from the proprietors of those same mass media – Fairfax, Packer and Murdoch. The issue, as they saw it, was freedom of the press – a catchcry debunked by the great American humorist AJ Liebling who noted that:
”Freedom of the press is guaranteed only to those who own one.”
Certainly, defamation law has never been entirely about the press barons’ rights. There have always been mini-media defendants: the authors of libellous letters, slanderous gossips… even graffiti taggers.
Now the Australian courts are under attack for their “lack of agility” in coming to terms with the avalanche of defamation spewed out in our social media. The claims for damages are shouldering aside conventional defamation suits and threatening to clog up the court lists.
Landing in a litigation cost-for-all
It is painfully obvious to the solicitors to whom clients bring screen-shot examples, and ask to be advised about their rights, that it simply doesn’t occur to the authors of so many Facebook and Twitter character assassinations that their hasty and often malicious comments are liable to land them in a great deal of very expensive litigation.
It’s not just at that level – there is a massive amount of actionable defamation to be found on websites that invite customers and clients to comment on their experiences with doctors, architects, lawyers, hairdressers and other businesspeople.
So, before you let fly at your neighbour about leaving his bins out all week and accuse him of bad citizenship or worse, here’s a little guidance: defamation for beginners.
The most common question posed by solicitors’ clients is whether the matter appearing on Facebook or a word-of-mouth blog is defamatory.
Usually, that is hardly the issue. Most people, including clients, can tell whether something is defamatory. The classical legal test is whether the words in issue tend to lower the aggrieved person in the opinion of reasonable members of the community – or, put simply, the question is does the post denigrate him or her?
Not the words, but the meaning
The next task for the lawyer is to formulate the meaning conveyed by the words. A plaintiff in a defamation action sues not on the words themselves, but on their meaning, and such meanings are almost invariably written between the lines. If a tweet advises readers not to leave their wallets lying around if John Smith’s in the room, the meaning on which Mr Smith’s lawyers will fight the case is that the words impute that he’s a thief.
Which brings me to the matter of imputations, or meanings. To stay with poor old John Smith, if the tweet is in the words: “Smith is a thief”, the court case will be about whether or not that simple statement is true.
More often, the words will be: “I hear that John Smith was dismissed from his employment after allegations that property had been misappropriated”; in which case the imputation is: Smith is a thief.
There is a good deal of sarcasm in social media attacks. If the words are “Of course it is not for me to say that Smith is a thief”; or even “There is no truth in the rumours that Smith is dishonest”; or perhaps “When asked whether he was a thief, Smith had no answer”, the same meaning – that Smith is a thief – will express the “act or condition” that is conveyed by the words, and for which John wants damages.
Since 2005, Australia has had the benefit of a more or less uniform law of defamation in every state and territory.
Tweets girdle the earth
Which is just as well, because a Canberra tweet is certainly going to be read in NSW, and Victoria, and even outside this country. At least the legal defences available are consequently uniform, and lawyers can advise those responsible for the publications on their chances of succeeding: substantial truth of the meaning of the words is the best defence, and applies everywhere; and the other strong defence (if it fits) of “it was my honest opinion,” or a fair comment, can be invoked in every jurisdiction.
Just a quick aside: even what is intended as a joke can be defamatory. The legal principle was established long ago that “a person shall not be allowed to murder another’s reputation in jest.”
Now some inside knowledge that may help, if you have it in mind to get square with the people next door for their offensive bin-handling. Your intended tweet: “Our neighbours are letting down the whole street with their I’m-all-right-Jack attitude” is going to be the subject of legal advice, along these lines:
- How serious is it? A good question, because sensible advice is that some defamations are best allowed to pass through to the keeper.
- How many people read it/saw it/heard it? Even if it’s fewer than a dozen recipients, damages for a very nasty comment could be within the $50,000-$100,000 range.
- How long before we go to court? Time is always on the defendant’s side. The question is whether waiting one or two years is worth the worry.
- Can I afford to sue? All litigation is expensive, and victims of defamation not infrequently have to come to an arrangement to pay their lawyers once they’ve won the case. The reality is that lawyers have to back their own judgment.
- Will I win? This involves whether the meaning of the words can be proved substantially true, or – being false – whether the author acted reasonably in putting them out there (which won’t work for an indiscriminate publication), or whether the court can be persuaded to see them as a fair comment. That’s a great deal harder to do than most tweeters think. How is the reader to know it’s fair enough if the facts aren’t also featured in the words that appear?
Many defamation victims rush in to see their solicitors, breathing fire… but that fire dies down quickly. The best advice is often to advise to put the defamation aside for a fortnight, and then to reconsider suing. In the meantime, a solicitor’s strong letter to the offender may succeed in removing the defamation from the site. It is quite surprising how many clients decide they would rather forget it.
On the other hand, some libels are so bad, so obvious, and so indefensible that immediate action assists with the damages – because it shows the degree of hurt to feelings, and that the plaintiff did everything he or she could to obtain a retraction and apology.
Bloggers and tweeters almost never seek legal advice before they send their defamatory messages. They, obviously, are the ones who would benefit even more from a cooling-off period before they rush into print.
Ben Aulich is a partner of Aulich Civil Law Pty Ltd, and a member of CLA. This article appeared first in the Canberra Times on 12 August 2017: http://tinyurl.com/y8n96q9u