Commencement of Action
The plaintiff can, with limitations, commence action in any jurisdiction. Generally the action would be commenced in the one where he or she resides. Under the Act, if the publication is in a number of states and territories, the plaintiff should commence action in the place where the harm occasioned by the publication as a whole has its closest connection that will determine the law applicable to the defamation. The procedure in Court is determined by the law of the place where the action is commenced.
A corporation cannot receive damages for hurt to feelings and must be hurt in the ‘hip pocket’ to receive compensation.
Who Can Sue?
Any living individual who believes they are being defamed can make a claim. However, a deceased person cannot sue.
Corporations employing ten or more persons do not have a cause of action unless the corporation is an excluded corporation. An excluded corporation is one which:
- The objects for which it is formed do not include obtaining financial gains for its members or corporations, (i.e. not for profit organisations); or
- It employs fewer than ten persons and is not related to another corporation.
Who is Liable?
Anyone who published or who authorised the publication, e.g author, distributor, editors, printer, proprietor e.g. of a newspaper, vendor on the street, press agency, internet service provider, editor of a computer bulletin board. The latter two publishers maybe liable particularly in situations where the material stayed on the internet or bulletin board and the persons who let it stay there despite a warning from the plaintiff or request to remove it.
Proving defamation is frequently half the battle. The defendant may have or raise any defences either under the common law or under the Act. A summary of mainly statutory defences is set out below.
What are some remedies for defamation?
The main remedy is damages, i.e. money. Under the Act the maximum compensatory damages (i.e. damages for hurt to feelings, etc) are $324,000. A court cannot order an apology.
In addition to damages for hurt to feelings and damage to reputation, the Court may award damages for economic loss if such loss can be proven to be causally linked to the defamatory publication.
What is Justification?
The defence mown as justification is also commonly mown as the defence of truth.
Under the Act, truth is now a complete defence and the previous public interest requirement needed to make out the defence in NSW is no longer applicable.
However it must be said that as the onus of proof in respect of any defence falls on the publisher or defendant, reliance upon a defence of truth means that the defendant must be able to prove that the matters complained by the plaintiff are substantially true.
It is also requisite that the publisher must justify all defamatory imputations in the publication. So if eight defamatory imputations are pleaded by the plaintiff, the defence requires justification of all of them.
What is the Contextual Truth?
This relates to publications where there are a number of imputations, major and less serious, some of which are proven true and some not proven true. The basis of the defence is that if the imputations which are most serious are proven to be true, the defendant can escape liability in respect of the minor imputations which are not true, because the minor ones do not further injure the plaintiff.
Who determines the verdict in a defamation case?
Since the Defamation Act 2005, whether a matter is defamatory (and the defences) are the province of a jury, but damages is the province of a Judge.
What is Absolute Privilege?
Absolute privilege embraces occasions where statements are made such that the publisher or speaker is wholly immune. In other words, there is absolute freedom of speech.
At common law, this includes reports of parliamentary proceedings, proceedings in Courts and most tribunals, communications between spouses, executive communications by persons holding high executive office of state, such as ministers.
Schedule 1 of the Act has an exhaustive list of occasions of absolute privilege (32 of them) under various statutes. Some of them are matters published to or by the New South Wales Crime Commission, matters published to or by the Independent Commission Against Corruption, matters published to or by of the State Parole Authority, Serious Offenders Review Council, matters published to or by the Ombudsman.
What are 'Free Speech Defences'?
A free speech defence was expounded in Langev Australian Broadcasting Corporation (1997), in which the High Court confirmed there was an extended Common Law defence of qualified privilege related to political communication justified by reference to an implied constitutional freedom of a communication, but without needing to resort to the implication of personal rights into the constitution.
A summary of the defence is as follows:
- the communication must be about government or political matters;
- the defendant’s conduct in publishing must have been “reasonable” and in respect of the reasonableness will not be reasonable unless the defendant;
- had reasonable grounds for believing the imputation was true; and
- took proper steps, so far as they were reasonably open, to verify the accuracy of the material; and
- did not believe the imputation to be untrue; and
- had sought a response from the person defamed and published the response made (if any), except in cases where the seeking or publication of a response was not
- practicable or it was unnecessary to give the plaintiff an opportunity to respond
If the plaintiff can prove the defendant used the publication for an improper purpose, then the defence cannot be made out.
What is fair copy or extract of a public document?
In New South Wales categories of public documents which attract this defence have been specified in a schedule to the Act (schedule 2). For example documents relating to special commissions of inquiry i.e. a report to the governor by a commissioner that the Special Commissions of Inquiry Act 1983, or a document produced to the parliamentary committee by the Independent Commission Against Corruption in a private enquiry and subsequently made public attract the defence.
What are some considerations if you are a publisher?
Before you publish you must consider whether the publication is defamatory, whether re-wording or editing it, or leaving out a photo will prevent it from being defamatory. Will you likely or possibly be sued by the subject of the publication? Can you prove the truth of the imputations in the publication? Can you defend it? If you are concerned or not sure, then don’t publish the material. Re-think it, or seek advice. If threatened with a defamation action, then immediately seek legal advice.
What is qualified privilege?
The Act also provides a statutory defence of qualified privilege as follows:
- the recipient has an interest or apparent interest in having information on some subject;
- the matter is published to the recipient in the course of giving to the recipient information on that subject; and
- the conduct of the publisher in publishing that matter is “reasonable” in the circumstances.
The test of apparent interest is that if at the time of publication, the publisher believes on reasonable grounds that the person to whom the matter is published had that interest.