Shortcuts / 09 March 2023

Defamation laws

Plenty of high-profile people have recently been involved in defamation cases in recent times, like Lisa Wilkinson, Ben Roberts-Smith, and Erin Molan – not to mention the big one in the US last year involving Johnny Depp and Amber Heard. So in this episode of Squiz Shortcuts, we take a look at what defamation is, some recent cases, and the push by media companies to have the laws changed.

Umm… What’s defamation?
Simply put, it can be anything that harms a person’s reputation. A lot of the cases that end up in the news involve famous people but the reality is there are plenty of cases in the courts every day that involve regular people.

Yeah, there are cases of employees saying bad things about their bosses online – and even people in private online groups chats slagging off against someone – that have ended up in defamation cases.

But hang on – don’t people say bad stuff about each other all the time online?
It’s a solid point – and not to alarm any trash talkers but the bar to bringing a case of defamation against someone is in some ways quite low.

How low are we talking?
Well, there are really only 3 things you need to establish to pursue a defamation case. The first is the defamatory thing needs to have been said to at least one person – it doesn’t matter whether or not it was written. The 2nd is it must identify the person and the 3rd is that it has to be defamatory to the “ordinary person”.

Basically, the law there is asking, are you just offended because you’re easily offended or actually does the statement reflect you poorly in the eyes of others?

So there are a lot of things that could end up in court…
There sure are – but most of the time what people say about each other goes through to the keeper, so it’s quite rare that someone is aggrieved enough to bring a defamation suit.

Or rich enough…
Yep, lawyers ain’t cheap, so that’s often why people who can afford it are more likely to bring a defamation case. But there are still plenty of cases involving normal punters.

Like what?
As an example of how defamation works – let’s say Janine is a carpenter and she sees a review about herself online posted by a client called Tim. Tim says Janine is the most incompetent carpenter ever and don’t employ her because your house will fall down.

And that’s defamatory?
On the face of it yes – because it harms her reputation.

So she could get a lawyer?
Yep, she could bring a case against Tim who posted that review. But probably one of the first questions her lawyer would ask her is “what is Tim going to say in his defence?” Because this is the nub of defamation law – it’s not really about what was said. The bigger question is whether it’s defensible. That’s really the thing the court is considering otherwise people would be in court every day.

Right, so how could Tim defend himself?
Well, one of the most common defences is truth. So Tim could say, “I’ve had to spend thousands getting another chippy to fix up Janine’s shoddy work – and here’s the photographic evidence of all her bad work.”

What if he didn’t have photos or proof?
Well, another defamation defence is “contextual” or “substantial” truth – so Tim might not have direct proof her work caused the issues on his house – but he might come to court and say “Here are 5 other times other people have had similar issues with her work – so what I’ve said about her actually doesn’t make her reputation any worse.”

So what are some of these high-profile cases you mentioned?
The latest one in the headlines involves TV presenter Lisa Wilkinson. She’s defending herself against a case brought by Bruce Lehrmann – the political staffer who pleaded not guilty to sexually assaulting Brittany Higgins.

What’s the deal with that?
So you might remember that Lehrmann’s rape trial last year ended in a mistrial after a juror brought prohibited research material into the jury room. Lehrmann is now suing Wilkinson over her interview on The Project with Higgins that aired just over 2 years ago.

Right. And I remember a big US case between actors Amber Heard and Johnny Depp?
That one got huge media attention around the world last year. It started when Depp launched this case against his ex-wife Heard back in 2018, saying an opinion piece she wrote for the Washington Post back in 2018 implied he was a domestic violence abuser.

What happened?
Heard counter-sued, saying he claimed she was a malicious liar and concocted allegations. And Depp won, mostly… The jury awarded substantial damages to Depp and a smaller amount to Heard.

That’s still a pretty significant victory for Depp…
Yep – especially given the bar to win a defamation case is considered to be much higher in the US. That’s because freedom of speech is written into their Constitution, so courts don’t generally like getting in the way of that.

But not so in Oz?
Nope – we don’t have any implied right to free speech in our Constitution, and we’ve even been called “the defamation capital of the world.”

Why’s that?
Well, back in 2019, the President of the Victorian Bar Matthew Collins gave a speech to the National Press Club. He said England used to be the worst country when it came to defamation laws but now NSW Appeal courts were more than 10 times as likely to take on a defamation case than those in London.

Any other interesting cases to note?
There’s a recent one involving TV and radio host Erin Molan. So in 2020, Molan – who was then working for Sydney radio station 2GB – used the phrase “hooka looka mooka hooka fooka” in a discussion about the pronunciation of Polynesian names on radio station 2GB. The Daily Mail accused her of mocking those names, and Molan sued the publication for defamation over an article and some tweets which she said portrayed her as a racist.

How did that one end?
She was awarded $150,000 last year but the Daily Mail appealed almost immediately. And just last week the Federal Court accepted there was a case for appeal, so there’s more to come on that one.

What about some of the cases that haven’t made the news?
So late last year there were a couple of cases in the Victorian County Court involving local councillors. In one case a local councillor had to pay out $200,000 after someone posted on his public Facebook page that a local developer was a “thief” and “corrupt”.

Social media strikes again…
Yep – they weren’t even his comments but he was still liable because it was his Facebook page. And in a different case, a councillor was awarded $100,000, again after someone posted on Facebook suggesting she was engaged in corrupt conduct.

So it’s pretty easy to get a defamation case off the ground in Oz… What’s been said about the laws here?
Our strict defamation laws here have led to growing calls for change from some of our biggest media companies. That’s particularly come into focus with a case that’s been in the news for nearly 5 years – that of former SAS soldier and Victoria Cross recipient Ben Roberts-Smith. He’s suing Nine Entertainment and journos Nick McKenzie and Chris Masters.

What’s that about?
Masters and Mckenzie first published stories about Roberts-Smith back in 2018. The trial was meant to be done and dusted a couple of years ago but there have been delays because of the pandemic, national security concerns, and even after the Taliban’s takeover of Afghanistan in 2021 because witnesses couldn’t be found.

It’s extraordinary stuff…
It certainly is – it’s been called the defamation trial of the century and we are still waiting for a verdict. And the stakes couldn’t be higher for both sides – on one hand there’s the reputation of one of our only living VCs – and on the other, there’s what the Australian Financial Review says is “a test of the courts’ appetite for investigative journalism”.

What does that mean?
Well, something that has come up a lot during this case is ‘imputations’. One of the things media companies don’t like about our defamation laws is that judges get to decide the imputations of what they publish.

What’s an imputation?
Think of it as the implied meaning of something. So in this case, Roberts-Smith says one of the imputations of the stories about him is that he murdered an innocent Afghan civilian. Nine says it never reported or suggested that, but Roberts-Smith says it’s about what the article is implying about him.

So the court case is not just about what was explicitly written?
Exactly – it’s also about what the judge decides he thinks the article conveyed, and that makes it much harder for media organisations to defend.

Gee that’s tough…
Yep, and going back to that speech by the Victorian Bar President – he argues these imputations are hatched by “ingenious lawyers” and aren’t about the “actual meaning” of what was said, which he reckons is a real issue for freedom of the press.

Right, so what’s Nine’s defence in the Roberts-Smith case?
They’re focusing on building the defence of substantial or contextual truth. What it has submitted to the court is that Roberts-Smith disgraced his country in his actions on the battlefield and was regarded within the SAS as a bully and a hypocrite.

Are there any other examples of defamation cases based on a perceived imputation?
The ABC’s Four Corners program and Nine also lost a big one back in 2021 and had to pay out over $500,000 to Chinese-Australian businessman Chau Chuk Wing. In that case, the judge said the stories contained an imputation Dr Chau was a spy – even though the ABC’s story didn’t say that.

So this defamation thing isn’t going away anytime soon…
Nope, and we’ll keep you up to date with some of those ongoing cases we mentioned.

Squiz recommends:

Ben Roberts-Smith v the media podcast Guardian Australia

Sydney man wins $35,000 defamation payout over Rose Bay Facebook stoush ABC News

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