Before we start – I’ve referenced the quite excellent media law textbook “The Journalist’s Guide to Media Law” by Mark Pearson and Mark Polden (which you can buy or borrow from the Library), as well as Defamation Watch.
As Pearson and Polden succinctly put it, the two key questions that you need to ask before publishing are:
- Is the material I am about to publish defamatory?
- Is there a defence available?
Let’s first look at the key concepts:
What is defamation?
In essence, defamation is the wrong injuring of another person’s reputation without good reason or justification.
This goes beyond a mere insult or matter of opinion, but something that might damage someone’s standing within the community, or unfairly expose them to ridicule in a way that damages their reputation.
eg. Not defamatory: Politician xx made errors of judgement in their time in public office, and were ineffective in opposition.
eg. Defamatory: Politician xx is corrupt, and has been paid off by developers.
What is publishing?
This can include any of the following (which is taken from the Act):
(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and
(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and
(c) a letter, note or other writing, and
(d) a picture, gesture or oral utterance, and
(e) any other thing by means of which something may be communicated to a person.
So really, it’s transmitting information from one person to another. This includes social media.
What are the key defences to it?
There are obviously many instances where the role of a journalist or media organisation is to publish matters of public concern that people might find unflattering.
The full list of NSW defences are here, but in brief they are:
So if the thing that you’ve published is true, it’s a pretty solid defence. A few things: believing it to be true isn’t enough (you need evidence); and nor is having someone close to the matter tell you it’s true (you need sufficient verification).
- Fair report or honest opinion
If you’re publishing something that’s based on fact, and you genuinely hold the opinion, and it’s a matter of public interest – it’s an allowable defence. That said, if you’re acting with malice (eg publishing something out of spite, or if you’re “out to get” someone), your defence can be undermined.
- Absolute privilege or qualified privilege
Both of these defences relate to certain places or circumstances where you can’t be prosecuted for defamation: if you’re a Member of Parliament – making a statement on the floor of Parliament; or in court. Also covered are discussions of government or political matters, and fair and accurate reporting of proceedings of public concern.
- Innocent dissemination
This covers people who aren’t in any way involved with the content being published, but who do have a role in spreading the information. The classic example is the newsagent who sells the newspaper with the defamatory article – the newsagent is not liable.
I need to read more about defamation law immediately!
Okay then. Read this.
Side note: Public interest
This is an important concept, and defined as “a matter of genuine public concern related to something of importance in the public domain, such as the performance of a public official or the quality of a work or product paraded for public consumption”. (Definition stolen from Pearson/Polden.)
eg. Public interest: politician xx has appointed his nephew to a key public role, despite him not holding appropriate qualifications or experience.
eg. Public interest: the bridge over xx river is showing evidence of not being properly maintained and hence may be unsafe.
eg. Not public interest: celebrity xx has been spotted in nightclub with someone other than their partner.
Research the following cases:
- Joe Hockey vs Fairfax
- Rebel Wilson vs Bauer Media
- Sarah Hanson-Young vs Bauer Media (Zoo Weekly)
- Osman Faruqi vs Mark Latham
- Lange vs ABC
For each, write down:
- What are the key points of this case?
- Why was the finding made?
- How could the issue have been avoided?
Cases to keep your eye on:
There are a number of defamation cases still in progress when I hit “publish” on this post. I think these are worth keeping an eye on:
- Milorad Trkulja vs Google
- Emma Husar vs BuzzFeed
- Craig McLachlan vs ABC
- Geoffrey Rush vs The Daily Telegraph
- Ben Davies (Michaelia Cash’s former chief of staff) vs Australian Workers’ Union and BuzzFeed
A bit more reading:
This opinion piece provides some useful insight into defamation as a legal concept.
Some misconceptions about defamation, and who is most likely to be involved.
And just because someone in authority says it, doesn’t mean it’s not defamatory.
And finally, some disclaimers
This post is designed to give you an overview of this legal concept only in the context of working in the media. This is not as a replacement for legal advice. I am not a lawyer. I am a teacher.