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 dollars on the increase

April 18, 2019 Roger Blow

The outcomes of defamation court cases can represent a temperature check on society’s views and values – or at least the judiciary’s interpretation of that temperature.

A number of recent decisions, both high and low profile, indicate a move towards a more enhanced respect for reputations and judicial disapproval for those that recklessly damage the good standing of other citizens.

The biggest defamation decision, both in the size of the damages award and the profile of the plaintiff, was the initial award of $4.5m to Rebel Wilson in her claim brought against Bauer Media.

Whilst that award was subsequently slashed to only $650K on appeal, the criticism levelled at Bauer Media in the initial judgment was blunt. It sent a message that at least some on the Australian benches had grown impatient with the modern media’s approach to accurate reporting and the growing thirst for online ‘click bait’ traffic, driven predominantly by ever more dramatic headlines.

The reduction in the damages award should not detract from that critique of the modern media’s handling of high profile reputations: the fourth estate is now on notice that if they play loose and wild with the reputations of those who can earn substantial income from their personal brands they now face a judiciary with an appetite for retribution. The average Supreme Court judge does not likely watch Married at First Sight or the Bachelor and will therefore likely hold a more traditional view that the average Australian is not content to have their public persona trashed (pun intended) on national television. We also now wait with interest to see the level of damages to be awarded to Geoffrey Rush following his successful defamation claim against the Daily Telegraph earlier this month.

Perhaps an even clearer indication of the current judicial assessment of reputational damage was seen in a New South Wales District Court decision that awarded $237,967.22 to an employee of a child care centre who sought to reduce his shifts at that business (as he was legally empowered to do) and then suffered the disapproval of his boss (who owned the business) through the publication by email of a number of allegations, the most serious of which being the inference that he had been sacked due to dishonest conduct.

The key issue from a damages perspective is that the email was only sent by the centre owner to 35 recipients. The plaintiff was not a celebrity, even at a local level, and was not working in a high powered and well paid position. In those circumstances an award of over $200K can perhaps be considered high, as the Courts have for many years awarded relatively low damages in such cases, perhaps with an underlying objective to avoid defamation being seen as a profitable commercial enterprise. The writer has been advising on defamation matters for almost 20 years and it is a potential legal cause of action that has always come with a health warning as to the risk of achieving a pyrrhic victory.

So where do we stand in early 2019? The media and public at large are on notice that intentionally, recklessly and in particular perhaps maliciously trashing reputations is not considered acceptable by the Australian Courts, and the judiciary is happy to critique such conduct through higher damages awards. This is a good development. Not because the writer specialises in defamation disputes, but because it goes some way towards redressing what was an ever increasing imbalance between liability and accountability for actions online, as opposed to old fashioned ‘offline’ activity.

The internet was increasingly embracing the concept that it was the ‘wild west’ where anything goes and you could never be called to account. Whilst that is the very opium on which the large social media websites thrive and sell marketing, it is not good for society as a whole. In fact, it is perhaps one of the biggest legal, social and political challenges that we currently face. The online world now presents as one of the most significant dangers facing our children. It can impact their mental health in ways that the worst playground bullies of our youth could only dream of.

The more that the Courts, the Police and our schools are willing to really tackle and, where necessary, punish bad online conduct, the better. Redressing the balance has to start somewhere, and those three represent the central pillars of our communities when it comes to moulding acceptable community norms.

Roger Blow

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