Defamation – when is enough, enough?
As we all know, living or working in strata can get very personal. I am often amazed at what people say about others and their lack of concern about being sued for defamation. It is one thing to say it one-on-one; it is a completely different thing to say it in front of third parties or even sillier, putting it in writing.
Resident building managers have often been the target of defamatory statements from committee members or owners. Obviously, you don’t want to be running off to your lawyer every time someone makes a statement about you that you don’t like. However, if you are the subject of a sustained barrage from someone who clearly has an agenda to defame and hurt you, you may be left with no choice other than to advise that person that you propose to commence defamation proceedings and, if necessary, move to the next stage of issuing a concerns notice. The key is to work out when enough is enough.
So what is defamation?
Defamation occurs when one person communicates (generally by word, Internet, video or photographs) material that has the effect or tendency to damage the reputation of another and the communication must be published or communicated to a third party. All states now have uniform defamation laws.
Words or materials are generally defamatory if they:
• are likely to injure the reputation of a person by exposing that person to hurt, contempt or ridicule;
• contains a statement about a person which would tend to make the person be shunned or avoided;
• have a tendency to lower that person in the estimation of others.
How to commence an action for defamation
Any proceedings must be commenced within one year from the date of publication of the defamatory statement. Any individual person can sue, as well as a company employing less than 10 people. Prior to commencing proceedings, it is recommended to first issue a concerns notice that identifies the defamation being complained of and gives the other party an opportunity to rectify the defamation or publish an apology. After that, it is off to court!
Who is liable?
Generally, anyone who publishes or who authorises the publication of the defamatory statement. Proving the defamation is the key to the action. Damages will be determined by the judge but there is a maximum cap ($250,000 when the legislation was introduced) for damages for non-economic loss.
Defences to defamation
There are a number of defences to defamation, however, “justification”, is the big one. This is also commonly known as the defence of “truth”. Under the act, truth is now a complete defence and there is no longer a requirement of public interest. However, the onus of proof falls on the publisher of the defamatory statement. That person must prove that the alleged defamatory statements were substantially true.
Criminal defamation
Criminal defamation is much more difficult to prove and also much more serious. It is a matter where the allegations being made are so serious and the harm done to the reputation of the person is so wrongful and so malicious that it is a matter prosecuted by the police.
