Injurious Falsehood and Defamation – A Useful Distinction?

February 10, 2020 Roger Blow

Several high-profile defamation cases have recently been heard in Australian courts, but what separates ‘defamation’ from another legal term which is also increasingly being used in reputation disputes – ‘injurious falsehood’?

Defamation refers to false statements which damage a person’s reputation, whereas injurious falsehood refers to false statements which detrimentally affect a person’s or a business’ ability to sell goods or services.

The elements of a claim in injurious falsehood have been summarised by the Courts as:

1. There must have been a false statement regarding the Plaintiff’s business (either written or verbal);

2. The statement must have been publicised to a third party;

3. The statement must be made with malicious intent; and

4. The statement directly caused the Plaintiff actual loss.

Injurious falsehood concerns statements which, without necessarily having a detrimental effect upon a person’s reputation or causing them embarrassment, nevertheless have a negative economic impact.

Whilst the burden of proof under injurious falsehood requires the Plaintiff to prove an imputation to be false (which is not a requirement in a defamation action), the strategic benefit of running such an argument instead of or alongside a defamation claim is that it can provide an opportunity to seek injunctive relief.

Note though that the Courts have demonstrated limited patience where such an argument is utilised as ‘a transparent device to obtain a permanent injunction’ not available under defamation.

Cove Legal specialises in resolving legal disputes with particular expertise in bringing and defending defamation claims. Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media. He regularly provides commentary concerning media law issues to television, radio stations and newspapers.

Roger Blow, Practice Director P: +61 8 6381 0326 or e: roger@covelegal.com.au

This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.

Defamation – defence of absolute privilege

September 19, 2019 Roger Blow

A recent defamation Court judgment caught our attention.

In Ogbonna v CTI Logistics Ltd the court was asked to determine whether the issuing of a judgment containing the defamatory words (in an email) and the subsequent publication of that judgment in the public Austlii database amounted to republication, exposing the defendants to a claim for damages for defamation.

The court found that the judgment was published in circumstances of absolute privilege (s27 Defamation Act) by Austlii under the protection of s28(1) Defamation Act, which says:

It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in –

(a) a public document or a fair copy of a public document; or

(b) a fair summary of, or a fair extract from, a public document.

A judgment is therefore not capable of being regarded as republication of the original defamation complained of and does not give rise to a further claim by the plaintiff against the defendants. A victory for common sense. The Court observed:

“Were the position to be otherwise, no successful defamation action would ever be concluded, the publication of the decision being a republication of the original defamation giving rise to a further claim and so on and so on.”

Roger Blow

P: +61 8 6381 0326 or e: roger@covelegal.com.au

Photographs and your right to privacy

May 15, 2019 Roger Blow

A question that the media law team at Cove Legal is often asked: does having your photo taken, without your permission, constitute a breach of privacy?

Unlike the US, UK, New Zealand and Canada, Australia is yet to recognise a person’s legal right to privacy and therefore having your photo taken in public is not automatically contrary to any law, but as with everything in law it can still depend on the circumstances.

Australian law treats the taking of photos or videos in public and private places differently. Generally, in a public place, it is legal for anyone to take a photo or video of you without your permission, no matter how you might feel about it. Even having your photo taken by your neighbour while you do your gardening is not considered a breach of your privacy, provided they don’t step onto your property or harass you.

But not all public places are completely ‘public’. You may have noticed that venues frequented by children often enforce policies banning the taking of photographs and film on their premises, such as public swimming pools. Other places with frequent no-camera policies include shopping centres, rock concerts, museums and court rooms. Despite these places providing access to the public, the owners can still enforce their legal right to prevent people from using cameras whilst on their premises.

Legal action can be pursued if your photo is taken whilst you are engaged in an activity that an ordinary person would expect to be private. In 2008, a woman in Victoria sued her ex-partner for showing videotapes of them having sex (in private) to her family, friends and employer (Giller v Procopets). The court awarded damages to the woman for the distress it caused. Such actions are often run based upon a breach of confidence – not a breach of privacy.

New laws have also recently been introduced in Western Australia that criminalises the distribution of intimate images without the other person’s consent. These are new areas for the Police and the Courts to address, but with the recording and re-publication capabilities presented by even the average modern smartphone they are merely playing catch-up in a far more challenging online environment when it comes to addressing personal privacy rights.

Cove Legal offers specialist expertise in the area of media law, with a focus on protecting personal and corporate brands/reputations. Roger Blow is a leading defamation lawyer in Western Australia and can be found listed as a social media law expert on expertguide.com. He regularly provides commentary concerning media law issues to television, radio stations and newspapers such as Channel 7, Channel 10, The West Australian, the Age, the AFR and SMH.

Roger Blow, Principal, Ph: +61 8 6381 0327 or roger@covelegal.com.au

Defamation is not just for the rich and famous

December 20, 2017 Roger Blow

Recent press coverage has highlighted that legal actions arising from activity on social media are on the increase and are no longer limited to claims by the rich and famous.

For example in Port Stephens, the local Mayor is suing two people for defamation after they alleged in a Facebook post that he touched two women on the buttocks at a function. Both the person that posted the original allegation and also a second person who re-posted the allegations are being sued.

This follows on from a recent decision in a Swiss court that found a person who ‘liked’ a defamatory post on Facebook was guilty of defamation. The court said that by clicking the like button, the “defendant clearly endorsed the unseemly content and made it his own.”

Closer to home, NSW Judge Judith Gibson said that people posting and re-posting negative commentary on Facebook and in blogs are likely to be faced with expensive legal action which could end up costing them between $100,000 to $1 million to defend.

Judge Gibson said that “claims based on publications on the internet, emails and on social media, are now far more common than claims against traditional media defendants.”

Perhaps a useful ‘acid test’ when the fingers are hovering over the keyboard is to ask yourself ‘Would I feel comfortable shouting this allegation in front of the other school parents, or down at the local club?’ In a legal sense, it’s all the same risk. If that advice is perhaps too late for you, feel free to contact us for assistance.

Cove Legal Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media. He has represented tier one national political figures in defamation disputes and obtained injunctions in the Supreme Court of Western Australia relating to derogatory Facebook publications.