Defamation Basics Part III

December 4, 2017 Roger Blow

Remedies: offers to make amends and litigation

In our third and final instalment of our defamation series, we now turn to the options available to an aggrieved person (or plaintiff) that has been defamed and what an author/publisher (or defendant) can do if they receive a concerns notice.

Concerns notice

An aggrieved person may issue a written notice to the author/publisher of defamatory material explaining the defamatory implications within the publication. If the notice fails to adequately particularise the imputations of concern, the publisher may request further and better particulars about them from the aggrieved person.

Offer to make amends

The publisher may make an offer to make amends within 28 days from receipt of the concerns notice. The offer must be in writing and must:

state what defamatory imputations the offer relates to;
include an offer to publish a reasonable correction of the material in question;
if the material has been given to someone else by the publisher, include an offer to take reasonable steps to tell the other person that the material is or may be defamatory of the aggrieved person; and
include an order to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred in considering the offer.

If the publisher carries out the terms of an offer to make amends that is accepted, the aggrieved person cannot then continue or enforce an action for defamation against the publisher in relation to the material in question.

If an offer to make amends is made in relation to the material in question but is not accepted, it is a defence to an action for defamation against the publisher if:

the offer is made as soon as practicable after receiving the concerns notice;
the publisher was ready and willing, on acceptance of the offer, to carry out the terms of the offer; and
the offer was reasonable in the circumstances.

Apologies

An apology by a publisher to an aggrieved person cannot be submitted as evidence of admission of fault or liability, however can be a factor in mitigating damages.

Litigation – commencing an action and damages

Revisiting Part I – Bringing a defamation claim in Western Australia, a plaintiff can issue proceedings against a defendant within one year of publication of the defamatory material. The plaintiff is required to prove that:

the material was published to a third person, other than the plaintiff;
the material was of and concerning the plaintiff; and
the material was defamatory of the plaintiff.

A successful plaintiff may be entitled to an award of damages for non-economic loss, which may be in the form of:

general compensatory damages – currently limited to a maximum of $389,500; and/or
aggravated damages - the amount of damages will depend on the circumstances of the case and can exceed the current statutory limit.

In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time the material was published.

Exemplary damages (that is, damages designed to punish the defendant rather than compensate the plaintiff) cannot be awarded in defamation actions under the legislation in Western Australia.

Damages can be mitigated by such actions as the defendant apologising or publishing a correction of the defamatory material.

Check out our blog for the other posts in this series: Part I – Bringing a defamation claim in Western Australia and Part II - Defences to a defamation claim.

Cove Legal offers specialist expertise in the area of media law, with a focus on protecting corporate brands and 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 the West Australian, The Age and AFR.

If you would like advice or assistance with any legal matters involving defamation, we would be keen to hear from you. Please contact:

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

Tennille Provost, Senior Associate, Ph: +61 8 6381 0326 or tennille@covelegal.com.au

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.

Defamation Basics Part II

November 28, 2017 Roger Blow

Part II - Defences to a defamation claim

In the last blog we discussed what is required to bring a defamation claim in Western Australia under the Defamation Act 2005 (WA) (see blog post, Part I – Bringing a defamation claim in Western Australia). Today we will consider what defences are available to a defendant facing such a claim.

To balance the private right to protect one’s reputation with the public right to freedom of speech, there are a range of defences provided in Division 2 of Part 4 of the Act.

Truth and justification – if the publication is true, then the defendant has a complete defence. The legislation also provides that if the defendant proves that the defamatory imputations are substantially true, then the defendant has available the defence of justification.
Contextual truth – applies where there is a publication which has a number of defamatory imputations, some of which are true and some that are not, and the untruthful imputations do no further harm to the reputation of the plaintiff due to the truth of the statements that are correct.
Honest opinion – for this defence the defendant must prove: (i) the matter was an expression of opinion of the defendant, rather than a statement of fact; (ii) the opinion related to a matter of public interest; and (iii) the opinion was based on proper material. The defence is defeated if the plaintiff proves that the opinion was not honestly held.
Innocent dissemination – this defence most relates to publishers who are not the authors of material, such as a website or social media platform that allows users to post material online. The defendant must prove: (i) they were not the authors; (ii) they neither knew, nor ought reasonably to have known, that the material was defamatory; and (iii) their lack of knowledge was not due to their negligence.
Triviality – available if the defendant proves that the circumstances of the publication were such that the plaintiff was unlikely to sustain any damage to their reputation.
Qualified privilege – the publication may have been defamatory, but the defendant was obliged to publish it for legal, moral or social reasons, and so is excused from liability. The defence is defeated if the plaintiff proves that the publication was motivated by malice. This defence is most commonly relied upon by the mainstream press.
Absolute privilege – the defendant will not be liable if the publication of the statements were made in the course of particular public forums, such as in parliament or during proceedings in a court or tribunal.
Public documents and fair report of proceedings of public concern – a defendant will not be held liable for publication of defamatory material that was in a fair report of any proceedings of public concern, such as proceedings in public of a parliamentary body or proceedings in public of a court of tribunal, or statements contained in a public document (such as Parliamentary Report or Court Judgment).

Check out our next blog for the final installment of our defamation series, Part III – Remedies: offers to make amends and litigation.

If you would like advice or assistance with any legal matters involving defamation, we would be keen to hear from you. Please contact:

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

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.

Defamation Basics Part I

November 22, 2017 Roger Blow

With the growth in popularity of social media platforms such as Facebook, Twitter and Instagram, the number of defamation claims in Australia has increased significantly over the past few years. The online community is fast learning that it is subject to the same defamation laws as newspapers and other news outlets and that they need to think before they post or tweet, or indeed even before they ‘like’.

In this blog series to be released over three editions, we explore what an aggrieved person (or plaintiff) must prove to succeed in an action for defamation; what defences are available to the publisher (or defendant); and finally, the remedies available to the plaintiff, including issuing a concerns notice and commencing proceedings against the defendant.

Part I – Bringing a defamation claim in Western Australia

The law of defamation in Western Australia is governed by the Defamation Act 2005 (WA), which came into force on 1 January 2006 as part of new uniform defamation legislation that applies to all States and Territories.

To establish a claim for defamation, the plaintiff must be able to prove all of the following:

Publication – broadly defined in the legislation to include both verbal and written material, such as texts, emails, images and online communications. The images or words must have been seen or heard by a third person. Liability for defamation will extend beyond the original author in circumstances where the communication is then shared (for instance, by ‘sharing’ on Facebook or ‘retweeting’ on Twitter).
Identification – if the publication does not directly name the plaintiff, there are facts or details which enable the ordinary reasonable reader to identify the plaintiff.
Defamatory – the publication contains false information, an imputation or a representation about the plaintiff that damages their reputation or makes others think less of them. This is determined by considering whether an ordinary, reasonable person would think less of the person about whom the material is published.

A claim for defamation is only available to either individuals or else corporations with less than 10 employees or not for profit or charitable organisations. Court proceedings must be issued against the defendant within one year of the publication of the defamatory material.

Check out Part II in our defamation blog series, Defences to a defamation claim.

If you would like advice or assistance with an legal matters involving defamation, we would be keen to hear from you. Please contact:

Roger Blow, Principal, Ph: +61 8 6381 0326 or roger@covelegal.com.au

Tennille Provost, Senior Associate, Ph: +61 8 6381 0326 or tennille@covelegal.com.au

This publication is not legal advice. You should seek professional advice before taking any action based on its contents.

Harriet Wran - Flexible justice or the Courts overstepping the mark?

September 6, 2016 Roger Blow

The relationship between the media and the Courts has always been a difficult one. One is seeking to achieve justice and the other, at its heart, is a business trying to sell papers, website subscriptions or advertising.

This tension has been recently highlighted within comments made by Justice Ian Harrison in the Supreme Court of NSW in his sentencing decision for Harriet Wran, daughter of former NSW premier Neville Wran, who was prosecuted for robbery and accessory to murder.

Given the identity of Wran's father, her case attracted intense media attention and led, in Justice Harrison's words, to an "ill informed" and "sustained and unpleasant campaign" against her by several NSW newspapers, resulting in "immense psychological distress".

A Judge delivering a withering critique of the media's coverage of criminal proceedings is of course nothing new, but what makes this case different is His Honour's acknowledgement that he had taken into account the damage caused by the media's treatment of the accused in deciding the sentence to be imposed. In other words, the suffering caused by the media would appear to have directly reduced the punishment inflicted by the Court's sentence - similar to a custodial sentence taking into account time already spent in prison awaiting trial.

This has certainly led to some robust debate between the legal and media sectors, including a bold response from the Sydney newspapers identified in the Judgment as being the main protagonists, who bluntly suggested that it was not the court's role to consider questions of 'media taste'. So was this a Judge being flexible in achieving justice by having regard for the impact that a negative media campaign can have on an individual, or the Courts trying to wade into an arena outside of their jurisdiction?

A cynical observer might reflect that a Judge attacking newspapers operating at the tabloid end of the spectrum for sensationalism and unreasonable attacks on those in the public glare merely adds more fuel to their sales figures and will not ultimately have any impact on the decisions made by those controlling the editorial content. On the flip side, for how long will newspapers and in particular 'social' magazines be able to justify their content, however base, invasive or damaging to the individual, with the argument that it is up to the public whether they choose to consume?