There has been a notable increase in the number of defamation suits involving local councils in the last few years with most actions arising out of material published on websites, in newsletters or via press releases.
Defamation proceedings are time consuming, complex and the costs associated with defending claims often significantly outweigh any damage sustained. The litigation can lead to negative publicity for the council and can also be very distressing for individual officers named as defendants to an action.
What Is Defamation
The history of defamation is colourful. Libel and slander evolved from religious offences in English Common Law through to political offences for the protection of government and finally as a means of restoring private honour following the prohibition of duelling. Although times have changed, the law of defamation still attempts to cut a balance between freedom of speech and protection of the individual from the effects of inaccurate and possibly malicious publications.
Damage to reputation is the essence of the law of defamation. Damage is presumed once the meaning is determined to be defamatory. No actual loss needs to be proved to be awarded damages.
In order to be defamed, the Plaintiff must be identified in a publication issued by or on behalf of the defendant. The Plaintiff may be identified by name, title, photograph or other description. Usually generalisations about groups of persons are insufficient to identify individuals though a broad reference to a smaller group may be sufficient (for example stating that all Councillors at a named Council are corrupt).
It is also possible to intentionally defame several persons with one reference. For example, three policemen named Lee successfully sued over an article alleging corruption against Detective Lee in the Victorian Police force.
Prior to 1 January 2006 there were eight separate laws applicable to defamation in Australia. However, substantially uniform defamation laws were introduced throughout Australia in 2006. The applicable legislation in NSW is the Defamation Act 2005.
On 17 February 2003, the Limitation Act 1969 (NSW) was amended to reduce the limitation period for defamation actions to one year from the date of publication. This reduction is now uniform across all States and Territories. The limitation period can be increased to three years if the Court is satisfied that it was not reasonable for a Plaintiff to have commenced proceedings within a year.
In order to be defamed there must first be a publication communicated by one person to at least one other person, apart from the person defamed. The publication can be in any medium of communication – radio, photographs, newspaper, television broadcast, internet etc.
The publication must convey the defamatory meaning which is referred to as an 'imputation'.
Defamatory imputations may arise from any of the following:
- The literal meaning of words (eg, 'John Smith is a murderer').
- Reading between the lines (eg, 'Police were called to John Smith's office this morning' and 'John Smith resigned at lunch time' are separately innocent, but together they carry the imputation 'John resigned as a result of misconduct').
- A combination of what is published and what readers know (eg, saying 'Tom Brown is having an affair' to readers who know the man is a priest suggests not only sexual misconduct but also hypocrisy).
A publication is defamatory if it tends to do any of the following:
- Lower a person's reputation.
- Lead others to think less of the person.
- Make others shun or avoid the person.
- Cause others to ridicule, hate or despise the person.
Who Can Sue For Defamation
Any person identified as the subject of a defamatory statement can sue over it. This is judged objectively, which means a publisher may identify someone without meaning to. Corporations can only sue if they have fewer than ten employees. However, individual members of companies and organisations may still sue to clear their own reputations if a defamatory statement points to them in particular.
Neither the dead nor their representatives can sue for defamation.
Following the NSW Court of Appeal decision in Ballina Shire Council v Ringland  33 NSWLR 680 a council is not able to maintain defamation proceedings as a Plaintiff. As an elected governmental institution it does not have a reputation in the sense which is protected by the law of defamation. The principles of freedom of speech in respect of governmental issues are paramount, even where criticism or allegations are wholly false and unwarranted. However, any member or officer of a council who can be identified individually (or as a part of a group of individuals) and who has been defamed, can still sue.
An alternate cause of action available to councils is injurious falsehood. However, this type of action is hardly ever used as the council, as the Plaintiff, must establish malice on the part of the defendant and must also establish actual financial loss as a result of the publication.
Councils are not vicariously liable for the actions of their Councillors. In Justelius v Pittwater Council & Ors  NSWSC 348 Justice Levine stated:
'A council is a body corporate - s 220 Local Government Act 1993; a master or principal is vicariously liable for defamatory words published by his servant or agent with his authority or consent. An elected councillor performs functions as a member of the governing body of the council and as an elected person under s323 of the Local Government Act. Under s 275(2) of that Act an employee of the council is disqualified from holding office as a councillor - "civic office" is defined in the dictionary of the Act as the office of councillor or mayor. A councillor is not in law, on the proper construction of the Local Government Act, a servant or agent of Council'.
However, this is often an irrelevant distinction as it is usual for policies of insurance of local councils to include cover for the actions, including torts, of councillors as individuals provided they occurred whilst the councillor was performing his or her elected function.
The most common form of defamatory publication is the republication of a defamatory statement made by someone else. It is not widely appreciated that publishers who make a defamatory statement, authored by another, can be just as liable as the first author of the statement. The author would be liable for publication of the original statement to, for example, a journalist. However, the journalist and newspaper which publishes the statement to the whole community would also be liable and most likely face higher damages. Quantum of damages is linked to the number of people to whom the defamatory statement has been published.
Forwarding emails is one of the most common methods of republication on the net. Many people seem to be unaware that forwarding a defamatory email makes the forwarder liable as a joint publisher of the original material. The instantaneous nature of email means that an individual can publish defamatory material quickly and be provoked into replying in the heat of the moment. As emails are forwarded to many locations very quickly, the natural consequence is that many individuals could become jointly liable. Ironically, salacious or offensive material is typically considered worthy of forwarding.
A Council may be exposed to liability for defamatory emails sent by users of its computers. Policies should be in place for email use which everyone is aware of to minimise this risk. Also a clause in employment contracts making it clear that employees are not permitted to send offensive or defamatory material, by email with serious consequences for any breach, should be part of Council's management of the risk.
Claims arising from the publication and republication of defamatory material on Council websites are on the rise. The damages involved in such claims can be significant given the scope of the audience to whom the material can be published. Broadcasting transcripts of Council meetings, business papers, Council reports and other such documents can cause all sorts of problems if they are not vetted prior to being placed on the web.
If a Council does not have a reason for broadcasting a defamatory statement on its website, it should not do so and would have difficulty in successfully defending any action commenced against it.
As a practical example, Council 'A' uploaded the business paper for an upcoming Council meeting onto its website which was publicly accessible. The business paper included a report on a development application to be considered at the meeting. The report attached copies of objections received by Council in relation to the proposed development, one of which stated the development applicants were 'devil worshipers' and also listed numerous serious illegal and criminal activities allegedly being undertaken at the premises, all of which were defamatory of the development applicants. The officer assessing the application (who also prepared the report to Council) did not pay any regard to the statements referred to above as they were not related to Council's decision making process for the subject development application and could have no bearing on Council's ultimate decision in relation to the application. The development applicants downloaded a copy of the business paper (which included the defamatory statements) in anticipation of the Council meeting along with many other persons including friends, family and neighbours. The development applicants made a claim against Council for its republication of the defamatory statements. Council was unable to raise sufficient defences to the action as it could not establish any reasonable basis for publishing the material in issue.
There are a number of defences that can be raised to a defamation action. A defendant is not limited to one particular defence but can plead as many as can be applied to the action.
This defence is available where the Defendant proves that the defamatory imputations pleaded are substantially true. The onus is on the Defendant to prove the truth, the Plaintiff is not obliged to prove falsity. For example, to say 'John Smith resigned as Minister after visited by the police', it is necessary to prove not only that he resigned and that he was visited by police, but also that there is a connection between the events, since this is what the statement implies. If there is not, the defence will fail.
This is a similar defence to truth and is available where the Defendant can come up with his or her own defamatory meaning and prove it true. However, the Defendant's 'alternate' defamatory meaning must be equally as serious as the Plaintiff's pleaded meaning.
This defence applies to proceedings of parliament, courts and quasi-judicial or administrative
Proceedings, for example sporting and gaming tribunals as well as disciplinary and pecuniary interest tribunals. If a publication discusses matters protected by absolute privilege, it will be protected from defamation proceedings, but only if the publication is fairly and accurately reported and persons reading the publication are aware it is a record of a privileged event, for example stating it 'took place in Court' or 'in Parliament'.
The defence does not apply to meetings of Council whether in private or in public but could apply to statements made by a Council officer reporting on matters that have taken place in Court or other such proceedings.
This is an important defence for local government. The policy behind this defence is that certain defamatory statements warrant protection for the benefit of the general community on the basis that certain statements should be made freely without the fear of the threat of litigation.
Common law qualified privilege
Common law qualified privilege occurs within three categories:
- Statements made by a person who is under a duty to make the statement to a person who has either a duty to receive it, or an interest in receiving it.
- Statements made by a person in the furtherance of his/her own interest to a person who has a duty or an interest in receiving the information.
- Statements made by a person in the furtherance of an interest to a person with a common interest.
At common law the meaning of an 'interest' is very narrow. The interest must be beyond mere curiosity in the subject matter. For example the defence would not apply where the alleged defamatory statement was contained within leaflets handed out in the general community.
Common law qualified privilege can be defeated by evidence of malice on the part of the publisher.
Those who are appointed or elected to serve on a public body have a duty to express themselves freely and to say what they believe to be true at meetings of that body or any of its committees. Those placed in that situation will normally be able to raise the defence of qualified privilege. However, the publication must be determined by the Court to be 'reasonable' which means the author must have (all of the following):
- Had reasonable grounds for believing the statement was true.
- Taken steps to verify the accuracy of the statement.
- Genuinely believed it to be true.
Additionally, there is a requirement that the author must try to seek, where appropriate, the defamed person's response beforehand and publish that response.
Statutory Qualified privilege
The statutory defence is aimed at publications to the general public and contains a proviso that the publisher's conduct must be 'reasonable'. However, this standard is high and very difficult to attain. In determining reasonableness the Court can have regard to the 'nature of the business' of the defendant as well as whether it was in the public interest to publish expeditiously. The onus of proof lies with the writer/speaker of the statement to establish reasonableness.
Malice, if established, can defeat the defence of qualified privilege. A Plaintiff must establish intention on the part of the defendant to injure him/her.
Evidence which may go towards proving such a state of mind is knowledge of the falsity of the defamatory material or:
- Absence of belief in the truth of the material.
- Failure to enquire as to the truth.
- The manner and extent of the publication.
- Introduction of material not relevant to the occasion of qualified privilege.
- Publication of other defamatory material concerning the Plaintiff.
Only where a defendant knows the defamatory material to be false or is reckless to the point of wilful blindness, will it constitute malice. If a Plaintiff can only prove that the defendant lacked a belief in the truth of the defamatory material, it will amount to no more than an inference that the publication was actuated by malice and will require further evidence to constitute malice.
Fair Report and other proceedings
This defence applies to the reporting of court or similar proceedings and also council meetings heard in public. The onus is on the Plaintiff to prove that the matter was not published honestly for public information.
Fair Comment /Honest Opinion
The rationale of this defence is the protection of an expression of opinion on an issue of fact that is considered to be a matter of public interest. It is of course, every person's right to express an opinion on matters of public interest. This opinion may be wrong or possibly grossly exaggerated but is nevertheless defensible.
For this defence to apply, the publication should relate to a matter of public interest and be based on material which is true or published under qualified privilege or by fair report.
The defence also extends to third parties such as callers on talk back shows.
The defence is available in instances where the publisher has no control over publications (such as public postings onto a website). However, the defence is only available where such a person or entity neither knew nor ought to have known of the defamatory content. Where such a party is notified of the content and ignores it then the defence can no longer apply.
Offer of Amends
The statutory provisions relating to Offers of Amend are complex and must be invoked within 28 days of receiving a complaint (where the complaint sets out the defamatory imputations).
The offer should include an offer to publish a correction and to pay compensation (however nominal).
Failure to make an Offer of Amends can be taken into account by the Court in deciding costs. The Court takes into consideration, where a Plaintiff is successful (and vice versa), whether a defendant unreasonably failed to make an offer.
An apology cannot constitute an admission of liability.
Each State and Territory has passed legislation capping general damages at $250,000 unless the Court awards aggravated damages after which time the cap falls away.
Damages can be mitigated by evidence of an apology or correction being published before the trial or evidence that a Plaintiff has already recovered damages or brought proceedings elsewhere in similar circumstances.
The unsuccessful party will most likely also be ordered to pay the costs of the successful party. In deciding costs, the court will take into account the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings) and all other matters the judge considers relevant.
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