How to avoid being sued for defamation
This story that appeared in The Australian today is the stuff that makes many of us journalists break out into a cold sweat.
The Australian's Chris Mitchell to sue Julie Posetti for defamation
Being sued for defamation is a frightening reality for all of us tasked with taking information to the public.
I have never been sued, nor do I want to be, despite being told when I was a cadet 20 years ago that, ‘pissing people off is a sign of being a good journalist’.
Protecting yourself
Now, I am not going to pass comment on the alleged facts or details of the scenario published in The Australian today, nor am I going to go into the apparent dangers of social media and the fact that this may become a test case. That will all be covered in the follow-up yarns in the mainstream media over the coming days.
My post is simply a timely reminder to all journalists, writers, self-publishers (yes all us bloggers, tweeters, facebookers) and commentators that we must always be mindful of what we are writing, saying and implying before we hit the ‘send’ button.
When I am editing my work I always ask myself: "Could this make someone else look bad? Is it likely to upset the person in question?"
Because I am not a defamation lawyer I am not going to give legal advice. I will, however, offer some great links explaining the Law of Defamation in Australia.
The Arts Law Centre of Australia Online
For a defamation action to succeed, the person complaining of the defamation (the plaintiff) has to prove three things:
i. that the communication has been published to a third person
ii.that the communication identifies (or is about) the plaintiff; and
iii.that the communication is defamatory.
To be defamatory, the material has to be ‘published’ (communicated by any means – written, orally, pictorially) to at least one person other than the plaintiff. The intention of the publisher does not matter – liability for defamation can arise from errors.
The News Manual: A professional resource for journalists and the media
To defame someone, you do not have to make up false things yourself. You might defame a person by repeating or replaying words spoken by someone else, for example an interviewee.
It is no defence to claim that you were only quoting someone else. If you print or broadcast something defamatory, you could be taken to court, along with your producer, your editor or station manager and the person who said the words in the first place.
Before January 2006, defamation varied from state to state across Australia, but now there are Uniform Defamation Laws which are similar across all states and territories. The uniform laws adopted and adapted a number of statutory provisions from old laws but still retain the basic principles of common law.
The Australian Press Council
The sums awarded by juries in defamation actions grew significantly during the 1990s and 2000s in New South Wales. For instance, in 1989 the proprietor of a Sydney seafood restaurant was awarded A$100,000 (US$ 70,000) after a negative review by the food critic of The Sydney Morning Herald.
The new Defamation Acts cap damages awards at $250,000, subject to annual review on the basis of inflation indexes.
University of technology, Sydney
There is a provision under the defamation act for an early resolution procedure by way of an offer to make amends and to facilitate the making of apologies without the risk of liability being admitted.
For disputes that proceed to court, the remedy usually sought by a defamed person is an award of damages. However, exemplary or punitive damages, which are normally designed to punish the defendant and to deter him/her from repeating the conduct, cannot be awarded under the uniform legislation.
For more information about Pamela Wilson or WriteSmart, log on to http://www.writesmart.com.au/