When the famed are defamed: A closer look at defamation

When the famed are defamed: A closer look at defamation

It's difficult to put a price on a reputation. It’s a reference check on our character; it follows us throughout our lives and for many who rely on it to make a living, reputation can be “everything”.

Warren Buffett famously wrote: “It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you'll do things differently”.

Professionals such as doctors and those in the public eye such as musicians and sports people, spend a lifetime shaping their image and creating a brand; it becomes an important, yet fragile asset.  

Let's face it, if you work in an industry that places you in the public eye, and you are 'the product,' criticism comes with the territory. However, it is not an open license for others to lay waste to your reputation. The difficulty lies in knowing whether the line has been crossed.

Defamation is a term that is so widely misapplied in popular culture that it suffers from an identity crisis. It involves a strict test of liability, with parties succeeding in only the clearest of cases. Sometimes the right apology and retraction is enough to fix the harm inflicted; in rarer cases, court ordered damages may be the answer. If you feel your reputation has suffered from defamatory matter, then consider the following:

What is defamation?
It occurs when defamatory material relating to an individual is published. Defamatory material is that which could expose an individual to hatred, contempt or ridicule; cause people to shun or avoid an individual; or lower the public’s estimation of that individual. The law assumes that everyone is of good character, until proved otherwise.

What the Courts consider defamatory is a matter of context. For example, you may say I am a thoroughly decent person, but that I am showing signs of age; my eyesight is poor, and that my hands tremble. That is not a reflection on my character and is more likely to evoke sympathy rather than hatred, ridicule or contempt. But consider if I were a surgeon. To make these same comments would imply that I am a decent person but a dangerously incompetent surgeon, which is clearly likely to injure my professional reputation.* 

In making a claim for defamation you do not have to prove financial loss, you do not have to show that the statement was false and you do not have to show that the person making the comment was motivated by malice.

Who can take legal action?
The following groups are eligible to bring an action in defamation:

• Any living person.
• Small business (employing fewer than 10 people).
• Executives or directors of corporations with more than 10 employees can sue as individuals (not as the corporation) for damage to their business reputation.
• Non-profit corporations.
• Multiple defendants (a group of people) can sue over the same defamatory comment.

What do I need to demonstrate?

• You must show that the information was communicated by the defendant to a third party (i.e. someone other than you, 'the plaintiff'.) This can be oral, in writing or in pictures and will occur each time the material is seen or heard.
  
• You must show that an ordinary reasonable person, who has knowledge of the relevant circumstances, would interpret the material as referring to you. However, there is no need for you to be named.
  
• You must show that the material was capable of conveying the defamatory meaning you have alleged, to an ordinary person.  And that an ordinary person would have taken the publication as conveying the meaning alleged.

Is taking legal action worthwhile?
Before commencing legal action you should be aware that there are certain instances where, otherwise defamatory matter attracts a defence in law.

Defamation claims can fail in whole or in part if:

• the defamatory comments are substantially true (justification);
• where the circumstances surrounding the publication are such that you are unlikely to suffer harm (trivial);
• the expression was an honest opinion, based on proper material, and was a matter of public interest;
• the publisher can prove that most of what they have claimed is correct, and the material has not further harmed your reputation (contextual truth);
• the publisher was not the author or first distributor of the publication, was unaware that the publication was defamatory and this lack of knowledge must not have been due to the publisher’s negligence (innocent dissemination.)
• the person making the comment has a duty to make it and the recipient has a corresponding interest in receiving it (for example, a police statement or job reference) and the comment was not motivated by malice (qualified privilege).

Other exceptions extend to material published in Australian courts, tribunals, a parliamentary body or information contained in a public document (and/or summary or extract thereof).

Conclusion
Claims for defamation are often time consuming and expensive, and should not be commenced without careful consideration of the facts and expert legal advice. 

Given the time it takes for litigation to run its course, the action is decided long after the publication was made (and in some cases forgotten.)

Sometimes the most appropriate remedy is the correct type of apology (which a court cannot order). You should keep this in mind, and whether the satisfaction of “winning the case” or receiving financial compensation will cure the damage caused.

Take this for what it is: a straight forward, easy to read summary of an extremely technical and specialised area of law. Do not use this as the basis to launch into claim against a multi-national media outlet (or your neighbour who posted a photo of your wheelie bin out the front of your house on a non-collection day).

* John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, Gleeson CJ and Crennan J explain this concept.