[EP 023] Loose Lips Sink Ships: Defamation and its consequences for you

Hi it's Joanna Oakey here and welcome back to Talking Law! Today we're talking about the interesting area of defamation and to talk about defamation I've brought along our resident expert at Aspect Legal, Claire Gallagher.

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Claire is one of our solicitors at Aspect Legal and she originally studied Media and Journalism before beginning her legal career in litigation. It’s this background combination which has triggered her keen interest in defamation law. Who better to introduce us to this topic than Claire. Thanks for coming along today, Claire!

CLAIRE: No worries, Jo. Thanks for having me.

Why is this topic important to business owners?

JOANNA: Great. OK. Well look how about you kick it off for us Claire and let us know why is this area of defamation important for business owners to understand and be on top of?

CLAIRE: Yes. I think one of the really interesting things with defamation law is that a lot of people sort of have some sort of grasp on what it is. But I think it’s worth sort of just briefly examining what it actually is, which then kind of explains why it’s important.

Basically defamation is an area of law that involves a publication in any form whatsoever about someone that might be considered to cause harm to someone else. The interesting thing with defamation law is that a lot of people think it only has to be something that’s actually written down or something that’s spoken. But that’s not the case at all. We’re actually seeing a lot more creativity in how people defame other people and it’s limited by imagination at this point.

A couple of examples are there was a married couple from Sydney who complained about a Farside comic that was published in a newspaper in which their actual home phone number was used to depict the fictitious direct line on which to contact Satan. So all of a sudden this poor couple from Leichardt started getting phone calls and that was held to be defamatory because it effectively led to the conclusion that the creator of the comic was linking them to Satan.

JOANNA: Wow.

CLAIRE: That’s one interesting thing about defamation. I mean I guess another thing is it doesn’t have to actually cause harm. It’s just a statement or a publication that could be objectively interpreted as causing harm or damage to someone else. And likewise the person who made these statements or published the publication doesn’t actually have to have any intention of causing harm.

So that’s kind of a background of what defamation is. The reason it’s so important is because defamation all goes to protection of reputation and obviously reputation is everything. There’s that old adage that reputation comes on a tortoise and leaves on a horse. And that could not ring more truly in defamation.

JOANNA: Yeah.

CLAIRE: Yeah. So I guess another reason why it’s really important at this point in time is just because of the advent of the internet and social media. So it’s one of those areas now that what someone says about you can spread like wildfire even before you’ve had the opportunity to read it. It’s not like old times where it had to be sort of published in a newspaper or something like that to really have an effect. It does spread very quickly and it’s something that everyone has to be really aware of.

JOANNA: And I guess it’s really important then with those examples it sort of shows how easy it is for people to do things that might potentially be defamatory. As business owners it’s really important that we’re very clear with staffing policies and all of those sorts of things in how information is communicated from a business to the outside world. I guess that that’s probably part of the importance of understanding the area of defamation for business owners or marketing managers, people who are engaging staff that might be front facing to the online world.

CLAIRE: Yeah absolutely. That’s a really important area to be aware of and to make sure that the people that are making those comments are also aware of it. And you sort of know what they’re doing and that they’re not reactive type personalities. They’re people that’ll stop and actually take a moment to consider what the ramifications of what they’re doing might be. So yeah it’s a really important thing.

What must one prove in a defamation action?

JOANNA: Well let’s maybe start with the basics. What do you need to prove in order to prove a defamation action. What are the elements?

CLAIRE: Yes. Basically it’s just a matter of proving that, very generally and very briefly, that a publication was made. As I sort of touched on that can mean any form whatsoever that was published about someone so it does need to be an identifiable person. If someone came out and made a general statement about lawyers or doctors (we’ve heard all of those before) that’s not something you can bring a defamation claim for. It needs to be specifically identifiable as to who the comment or publication is about.

And the third thing is just that it needs to have been published to a third party. So if you and I were having a conversation, Jo and I. I wouldn’t do this but if I said something about you that you could have been deemed to be defamatory that’s not actually defamation it needs to have gone on to at least one other person.

So whether that’s something that someone’s read, whether it’s something that they’ve heard, anything like that it just needs to have gone on to a third party. So there are three elements that you need for defamation.

JOANNA: And of course that third element. It’s pretty easy when we’re talking about the online world. I mean obviously anything then that is published on social media would be seen to have met that last criteria. Right?

CLAIRE: Yeah definitely. Even if it’s sort of online for a few minutes. It’s amazing how many people can see it and how much damage can be done in that short time.

Can a company bring a claim for defamation?

JOANNA: Absolutely and then so we’re talking about individuals here. What about businesses? If businesses feel they have been defamed, is there any actions available to them?

CLAIRE: Yes. One of the interesting things with defamation law is that the uniform defamation laws which are in place in Australia actually mean that certain companies are prevented from being bringing a claim for defamation. The basis of this is basically that because a company is an artificial entity it doesn’t have feelings as such that can be hurt. So even though it does have a reputation that can be damaged the essence of what defamation is about isn’t there.

If it is a company that has had a lot of aspersions cast against it, a few important things to know; Firstly it’s if it’s an individual within a company but it’s had the comments made about them or published about them in any form they can definitely bring a claim for defamation. So say someone wrote something online and said the managing director of corporation X did something then that managing director because they can be directly identified they can most definitely bring a claim in defamation. But if it’s the company itself that’s had comments made about them unfortunately they can’t bring a claim in defamation. What they do have available is a different course of action called injurious falsehood.

And so basically injurious falsehood is what you would rely on as a company if you had had defamatory comments made about you. The issue with injurious falsehood as opposed to defamation is that there’s more elements to prove and it is a higher sort of threshold to prove those elements.

So a couple of the elements that do need to be proved that aren’t necessary for defamation is that there needs to be malicious intent on the part of the person making the comments whereas in defamation it doesn’t matter what the person intended it just matters that the comments were made. In injurious falsehood there needs to have been malicious intent. The corporation or the company that is bringing the complaint needs to prove that the statement was actually false. So in defamation there’s a presumption of falsity. Whereas obviously for injurious falsehood that means there’s a lot more evidence that needs to be demonstrated.

And then the final thing which is really difficult is proving that actual damage was caused. So you do need to sort of quantify some sort of damage to show that the statements as they were made did cause loss of some sort to your corporation. So there are avenues available but they are slightly more difficult unfortunately.

JOANNA: So our business potentially have access to arguments that can be used against someone that they believe is defaming them or saying things about them that they claim not to be true. It’s just that it’s a higher bar to get over for a business than it is for an individual in relation to a defamation action.

CLAIRE: Yeah, that’s exactly right. I mean I guess that comes down to sort of the really delicate balance we have in defamation where it is a balance between freedom of speech and people being able to voice an opinion and the Freedom of Information and what you can say versus an individual’s right. So if you have big corporations that were able to slap a defamation claim on anyone that published an opinion about them, obviously that would be an issue. Whereas for individuals it is a much more delicate area to protect your own reputation.

But like individuals, corporations and companies do have as a first avenue the same options available to them and that’s simply reaching out to the person that’s made the statements or published statements or anything like that and just asking them to remove it or retract it in whatever form it’s been made. That’s always a first step and the reason why it’s a recommended first step is because quite often talking to people and saying what they’ve said is defamatory or could be construed as being defamatory or damaging to their reputation is enough to make people reconsider how strongly they actually feel to make the comments and whether it is something they do want to continue to pursue and continue to stick to their guns on. Most people know once they’re aware that it has caused damage or that it could cause damage and it’s potentially going to turn into a headache for them, they will be happy to retract that statement. So that’s always sort of the first consideration.

JOANNA: And if that doesn’t work obviously from a legal perspective there’s the injurious falsehood element and then potentially we might even be able to find for clients arguments in things such as misleading and deceptive conduct.

CLAIRE: Absolutely.

JOANNA: If this is something that has happened in trade or its competitor for example. There are a number of potential avenues out there that should be examined on a case by case basis I guess.

CLAIRE: Yeah definitely. It all comes down to sort of who the corporation is and what’s been said about them. So yeah I think the important thing to keep in mind for businesses is that just because they can’t sue in defamation it doesn’t mean it’s the be all and end all. And it really comes down to just getting the right advice and reaching out to someone to work out what the best claim to bring would be if comments have been made that are damaging to you.

What about online posts?

JOANNA: Yeah. OK. And then also I have another question. What if information has been posted on the internet, I guess what can we look for remedies in this sort of situation? I mean the internet is a really difficult space isn’t it? Because once something’s out there often it’s captured in many ways. It’s hard to get that information back even if you were able to organize a retraction. What sort of issues does the internet play in this area of defamation?

CLAIRE: Yes so the internet is a really interesting area because it is a comparatively new area compared to some of the more traditional forms of media. It is an area that’s still evolving in relation to defamation. So one thing with the internet is that a lot of people think it’s a defamation free zone – that just because you’re sitting behind a keyboard you can say whatever you want to say and think that there’s going to be no ramifications and that’s absolutely not the case. I think one of the things to keep in mind for the internet is that there are the same repercussions as if you had gone and published the same comment in a magazine circulated around the country.

Unfortunately, as you have highlighted, one of the problems with the internet is that once it’s out there, it is out there unfortunately. But one interesting way that people are dealing with this particularly in relation to companies is not necessarily asking for it to be taken down but dealing with it head on. So taking a more proactive approach and maybe responding to the comment and saying we’re sorry you feel this way and presenting their side of things and that’s a way that quite often it can get across to whoever might be reading it that the person was potentially juston a bit of a high horse when they complained about the company and that wasn’t actually the real situation whatsoever. And it’s a way of dealing with it directly so that no matter how far it’s spread there is this sort of response attached to it whereby the companies have managed to have their say as well.

Obviously individuals can do that as well. I think one of the things in terms of responding is that before you do it you just need to take a deep breath. It’s all too tempting in terms of writing a response if someone’s said something that’s a bit sensitive about you to fire straight back. But I think quite often it can do more damage than it does good.

So I think one of the really important things is to consider what you’re going to say and make sure how you’re responding is actually going to be beneficial to your reputation more than anything. But I mean yeah as you have touched on that is one of the different things about the internet and information can be spread so quickly and in a way that you’re not aware of. So I think another important thing is that you need to be completely across the board in terms of monitoring what is being said.

JOANNA: Yeah absolutely. And I think your point about taking emotion out of it before you make a response or before you make a decision about how you would deal with this information is a really important point and it is important in relation to almost every area of law that I can think about.

Reacting immediately to things without understanding both your rights and obligations and requirements and the consequences of your actions can be something that can cause a lot of damage to organizations far more than sometimes the original action as with everything in war and I think your point on defamation is really spot on. It’s about taking emotion out of it taking a step back and discussing with people who understand the area first before you jump right on board and decide to make a response that you might regret in the future.

The case of Ettingshausen

CLAIRE: Yeah definitely. And I think what you highlighted there is that it really does always come down to consequences and I think there’s sort of a perfect example of defamation that does kind of touch on consequences and not considering them all before you formulate a response.

There’s this thing in defamation law that’s called the Streisand effect that has to do with Barbra Streisand, obviously the celebrity. But in Australia there is sort of an Australian version of it that has to do with Andrew Ettingshausen the famous football player turned fisherman I think he is these days. But yes, there’s the case of Andrew Ettingshausen and Australian Consolidated Press which is basically, what happened there was a photographer and a reporter that were given completely unqualified access to accompany the Australian rugby league team in the Kangaroos tour. And what they were essentially doing was taking photos to put together for a children’s charity into a book for a children’s charity.

Anyway the long and short of it was that HQ magazine published a double page spread of the photo and it was titled “Shower Power” and the photo basically showed Andrew Ettingshausen leaning against a wall completely naked and facing the camera. And that was fine until he brought defamation proceedings about it basically saying that the photo opened him up to ridicule on the basis that he would allow a naked photograph to be taken of him.

And so what happened there which is really interesting in terms of consequences is that the court did find in favor of Andrew Ettingshausen and did say that it did open him up to ridicule. But what one commentator pointed out was that most people in Australia hadn’t actually noticed the full exposure that was present in the photo because it sort of was a grainy picture and there were words covering it. But what did everyone who had a copy of the magazine do as soon as they heard about these defamation proceedings? They went back and double checked. And it meant that basically far more people saw the offending photo than would have had he just kept quiet and carried on. So that’s another really important thing to consider is that quite often with defamation responding to it is going to spread it even further. And so you really need to consider, weigh it up and determine whether it’s best to respond at all. And if so what the most appropriate response is that’s going to have the least consequences for it.

JOANNA: I think that’s a really good point. But it’s hard isn’t it? We talk about taking emotion out of it but I guess if any of us had pictures that were distributed of us naked in the shower we’d probably be upset as well. But I guess that’s why particularly important in situations where they might be the most emotive to stand back and think about it before you make decisions because as you say in this instance even though it’s completely understandable that anyone would take offense at those sorts of photos being published if they didn’t have permission from the individual to do so. As you say the emotional response of fighting it in this instance gave breath to the flame and created more fire because more people were interested in seeing the picture. So it’s just such a good example of trying to take the emotion out of it.

CLAIRE: Yeah. And I mean it really is it’s a difficult thing. It’s so hard not to have emotion when it’s things that directly affect you or your reputation.

JOANNA: Yeah. Then what are some of the action items that our listeners should be thinking about if they believe they have been defamed.

CLAIRE: Yes. If it’s an individual that’s been defamed, I think exactly what we said before. First thing is go and make yourself a cup of tea and don’t respond straight away because chances are you’ll regret what you’ve said later. Get advice and discuss with people when to pick your battles and when to let things slide because not everything is worth fighting.

But I mean generally if it really is a serious thing that’s been said against you or something that’s particularly offensive, quite often the simple act of asking someone to retract that statement or take it down or issue an apology will be enough. And that will usually be sufficient to completely cure whatever has been said about them or their reputation and particularly if someone’s willing to publish a public apology say they made a comment on Facebook or some sort of social media and they then publish something saying actually that was completely wrong, chances are the same people that are seeing the first thing, they’re going to see the second thing. So I guess that’s the first step is usually if you contact the person and ask them to take it down or apologize chances are they will.

If that’s not enough, quite often a strongly worded letter will be; it really makes people consider when you start talking about litigation which is a perfectly considerable approach in cases of defamation if you start talking about litigation quite often it’s enough to make people reconsider where they actually stand on certain topics and just how strongly they feel about them, and again quite often it is enough to make them back down.

If that’s not enough then litigation is an option. Again as I touched on it’s just a matter of balancing up sort of the damage that’s been done to your reputation versus the cost and time it’s going to take with litigation but it is obviously definitely there as an option.

JOANNA: And sometimes it’s really important to consider some of these more serious approaches whether it be a letter from a lawyer making it clear the rights that you have in relation to the defamation that has taken place or even as you say taking that step of litigation because sometimes people really need to understand how serious it is before they cease repeating an action again. Whilst it’s important to take emotion out of it as we’ve been saying I think you’re spot on that sometimes there is a good reason for taking things further.

CLAIRE: Yeah. Particularly if there is that serious risk of repetition that’s one of the main things that you start looking at some of the more serious options. If someone is showing an absolutely flagrant disregard for anything that you’ve said to them then yeah you really do need to start considering some more serious options just so that it doesn’t get out of hand.

Action steps for business owners

JOANNA: Absolutely. Then I guess the next thing we should look at then are action steps for businesses in relation to ensuring that their workplace isn’t creating the risk of defamation actions against them as an employer, as a business in relation to things that the staff are doing or saying in social media or in other areas. So what’s the recommendation here about businesses protecting themselves?

CLAIRE: I think for all business regardless of how big or how small. The important thing is that you’ve got really specific and clear policies in place to do with not just social media but publication of any comments whether that be some sort of comment section on someone else’s website or whether you’re dealing with another business. It needs to be spelled out very clearly and staff need to be aware of firstly who is allowed to make those comments on behalf of the business as we sort of touched on before and a lot of people don’t consider the seriousness of things that are said on the internet and it might make a comment on behalf of business and not consider further down the line that could lead to a whole lot of trouble. So it needs to be really pretty clear who’s allowed to make the comments in the first instance.

Beyond that I think what can be said needs to be made really clear and spelled out very clearly in terms of what you can say about maybe competitors or what you can say about different people in different industries and different businesses or individuals. Ideally people that are trained in this area will be the ones making the comments. So whether you have some sort of social media manager or online content manager, ideally people that do know what they’re doing and at the very least people that don’t have reactive personalities, people that can sort of separate out the personal side of things from the more commercial side of things and think about it with those sort of eyes rather than just jumping on the first response that comes to mind which as we we’ve touched on can cause a whole lot of trouble.

JOANNA: I was going to say I guess part of this comes back to internal training as well having training available so we have to have our policies and procedures in place so that people understand what the company line is. Then as you say it’s about having the appropriate people to act as the sign off for the information outlet. And then I guess it’s also training making sure those people who are at the coalface are properly trained in the company policies but also understand where the line is because sometimes that line can be really grey right? So I guess it’s about making sure people really understand. So having training policies in place.

CLAIRE: Definitely and especially because the internet, particularly social media, is such a new area. There are so many people that think they’re over what they’re allowed to say and they’re actually quite far away from knowing what they can and can’t say. So yeah that training is really important. I think as a final step also making it really clear what action the company might take if someone doesn’t stick to the policy and just making it clear how serious it is through those action steps whether it’s disciplinary or some form of meetings or restricting access. I think it needs to be made really clear that this is something that the company does take seriously and that they will act on.

Watch out for third party posts on your online platforms

JOANNA: Great. OK. And I guess the last thing one thing that occurred to me as well is we talk to businesses all the time about being careful about what their staff and their personnel are communicating on their social media platforms. But the other element is also be being careful about what external third parties are posting on your social media platforms as well because just because it’s not you saying it even though it may be someone else saying it if your part of the publishing office and it’s in your channel then that maybe it can create areas of risk as well.

CLAIRE: Yeah that’s exactly right. And one of the important things in that regard is anything that you do sort of control the publication of. So whether it’s a comment section on your website or anything to do with your social media, that really needs to be closely monitored because exactly you’ve hit the nail on the head that if it is something that you have been seen to be involved in the publication or where you have control over it all comes down to control and you haven’t been sort of proactive in removing the comment and taking it down, then yeah, you can absolutely be liable for having that information displayed even if it wasn’t anyone from your company or anyone that had anything to do with making comments and that can be really dangerous area.

JOANNA: Okay good. So that last element then I guess is really about monitoring your own website blogs or your social media platforms where third parties may be making comments that might be seen as being things that are within your control.

CLAIRE: Yeah exactly. I think it’s always important that if it might be it might be an issue just err on the side of caution and take it down. It’s just not worth it having it there.

Quick recap

JOANNA: Absolutely. Wonderful. Great. Well look thank you so much Claire for giving us all of that information about defamation. I think it’s a really important area for businesses and individuals to understand.

So I guess as a bit of a recap. We talked about what the elements of defamation are. We talked about what to do if it happens to you. We talked about how the internet interacts with the area of defamation. We talked about the elements that you can think about if you’ve been defamed, that concept of taking the emotion out of it and consulting with people who understand what can be done in the area and how to manage these situations. But then also taking action and not afraid or not being afraid to be more serious about it. If it’s appropriate in this situation. And finally we talked about how businesses can protect against these issues occurring in the first place by having internal training having social media policies by ensuring that their staff and personnel understand by having the appropriate people posting information and communicating to the outside world on behalf of the organization and by monitoring our social media platforms and blogs.

That’s it. Thanks so much Claire for coming along.

CLAIRE: No worries. Thanks for having me.

JOANNA: All right. And if you listeners would like more information on this topic then just head over to our website at talkinglaw.com.au. There you’ll be able to download a transcript of this podcast episode. If you’re interested in going through each of these elements that we’ve talked about and action items in more detail there you’ll find details of how to contact our lawyers at Aspect Legal like Claire who can help you out with any of the items that we covered today. And finally if you enjoyed what you heard today please pop over iTunes and leave us a review. Thanks again for listening in. This has been Talking Law. See you next time.