Defamation

Recent Cases

A number of interesting defamation cases have recently appeared in the media. Courts are taking defamation matters very seriously and significant monetary awards have been made in favour of the defamed person, including aggravated damages. One such award was made in Gratton v Porter [2016] QDC 202 where judgement was entered in favour of the plaintiff in the sum of $160,903.42.

The facts of that matter were the defendant, following a breakdown of a three (3) year friendship with the plaintiff, began to spread rumours that the plaintiff was a paedophile. At one point she contacted a school to advise she was concerned about one of their pupils spending time with the plaintiff, in a family setting, and alleged he had been reported to the Police and visited by child protection. It was held that she had defamed the plaintiff and judgement was made in favour of the plaintiff accordingly.

It was reported on 5 June 2019 on the ABC News website that Sunshine Coast Police have recently charged a man with Criminal defamation. The defendant was allegedly distributing flyers falsely claiming his former sporting associate was a paedophile. Most defamation matters are pursued in the civil courts, so a criminal defamation charge is particularly rare and, if proven, the court can impose a custodial sentence of up to three (3) years.

The nature and number of defamation matters appearing in the courts can perhaps be attributed to the mechanisms of social media. Everyday people are turning to social media to air their grievances and people are failing to “think before posting”. Currently in the courts, the principal of Mount Tamborine State High has brought a claim against seven (7) defendants, who are the parents and friends of past and present students of the school and who engaged in allegedly defamatory comments posted on Facebook in relation to the principal. Those comments were made in response to a petition linked to a Facebook group lobbying for the reinstatement of the principal following a suspension. This case is yet to be finalised and the plaintiff has elected to have this matter tried by jury pursuant to section 21(1) of the Defamation Act 2005 (Qld).

It is certainly a case which should make people think before posting comments online. Some of the alleged offending comments can be found in Brose v Baluskas & Ors [2018] QDC 214 (31 October 2018) and were as follows:

“Finally she is made accountable for her horrendous attitude and behaviour toward those she felt were less than herself…good riddance to bad rubbish…She tried to destroy my daughters future…key word TRIED”

“She is a lying, manipulative bully, who gets off by belittling as many people as she can. She is responsible for every failure, she is pathetic NOT an educator.”

“She is a bully bully bully. She has always done what she wanted to do and if anyone challenged her she made a point to destroy them and their children. Her time is UP. GOODBYE to a evil person.”

So, what constitutes defamation?

Defamation is the publication of any false imputation concerning a person, or a member of his family, whether living or dead, by which:

1. the reputation of that person is likely to be injured; or
2. he is likely to be injured in his profession or trade; or
3. other persons are likely to be induced to shun, avoid, ridicule or despise him.

Publication of defamatory matter can be by:

1. spoken words or audible sound; or
2. words intended to be read by sight or touch; or
3. signs, signals, gestures or visible representations, and must be done to a person other than the person defamed.

What are the time limits for bringing an action in defamation?

There is a one (1) year time limit in which to file a defamation action in the courts. The time limit commences from the time that the defamatory material was first published. This limitation period can be extended by the court for up to three (3) years from the date of publication in the case that the court is satisfied it was not reasonable for the plaintiff to have commenced an action within one (1) year of the date of the publication. So, for example, where the defamed person was unaware of the publication until after a year had passed from the date of its publication it may be open to the court to extend the period in which to file an action.

If I have defamed someone, how can I prevent the matter from going to Court?

You can offer an apology to the person defamed and offer to print a retraction of your defamatory comment. Pursuant to section 20 of the Defamation Act 2005 (Qld) an apology does not constitute an express or implied admission of fault or liability.

You can also offer to “make amends”. The contents of an offer to make amends are detailed in section 15 of the Defamation Act 2005 (Qld).  It must be in writing and include, among other things, an offer to publish a reasonable correction of the matter in question and to pay the expenses reasonably incurred by the aggrieved person. It can also include an offer to pay compensation for economic or non-economic loss and an offer to publish an apology in relation to the matter.

Is there a defence available to me?

There are a number of defences available under the Defamation Act 2005 (QLD) and these include:

Section 25: Justification – if the defamatory imputations are substantially true;

Section 27: Absolute privilege – if the defamatory matter is published in the course of proceedings of a parliamentary body or an Australian court or tribunal.

Section 28: Publication of public documents – if the defamatory matter was contained in a public document.

Section 30: Qualified privilege for provision of certain information – if the defendant can prove the recipient has an interest, or apparent interest, in having some information and is published in the course of giving the recipient information and the defendant’s act of publishing the matter is reasonable in the circumstances.

It is important to note that the defence of qualified privilege is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice (s30 (4) Defamation Act 2005(Qld))

Section 31: Honest opinion – if the defendant can prove that the defamatory matter was an expression of opinion rather than a statement of fact and related to a matter of public interest and the opinion was based on proper material.

Section 32: Innocent dissemination – the defendant published the matter as an agent or employee of a subordinate distributor and did not know that the material was defamatory.

Section 33: Triviality – it is unlikely the plaintiff will sustain any harm from the publication of the defamatory matter.

Conclusion

The above cases show that the courts are taking defamation matters seriously. Also, in this day and age of social media with people feeling the need to make their opinions known to an increasingly wider audience, by instantaneously publishing them online, we really need to stop and think about our actions and the effect of our words on others. Not only the effect of our words on others, but the consequences of writing them down and disseminating them to millions of people in a social media environment and the liability we may be opening ourselves up to.