Defamation

Jul 28

17 min read

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Executive Summary

Reputation is one of the most valuable assets an individual or a business can possess. It is the cornerstone upon which trust is built and relationships are formed. In our interconnected world, a strong reputation can open doors to opportunities, while a tarnished one can close them. Therefore, it is of utmost importance to protect this intangible yet invaluable asset. Let’s delve into the importance of reputation and how to safeguard it.

As defamation lawyers in Queensland, in recent years we have seen that the number of defamation complaints or proceedings significantly increase. This is likely due to the ever-advancing landscape of the internet and social media. As a result, it has never been easier to express how your thoughts or opinions about another person.

There, however, needs to be a balance between one person’s ability to express themselves freely, whilst also protecting an individual’s reputation. This is where an action in defamation plays a crucial role.

Defamation is the publication (or publications) of unsubstantiated facts by a person (Publisher) to a third party that has caused serious harm to the reputation of another party (Aggrieved). Within Queensland, an action in defamation is governed by the Defamation Act 2005 (Qld) (the Act).

The elements of Defamation are:

The Publisher has made a publication.
The publication was made to a third party.
The publication is defamatory.
The publication has caused serious harm to the Aggrieved.
The publication is about or identifies the Aggrieved.
There was no lawful basis for the publication.

Prior to commencing any defamation proceedings, the Aggrieved must issue a concerns notice to the Publisher, particularising the defamatory publication and affording the Publisher an opportunity to make amends with twenty-eight (28) days (Period for an Offer to Make Amends). An Aggrieved is unable to commence proceedings until a concerns notice has been issued and the Period for an Offer to Make Amends has expired.

Prior to issuing a concerns notice or commencing proceedings, it is imperative for an Aggrieved to consult with a legal professional to ensure that viability of any defamation action.

Within this article, our defamation lawyers will explain defamation, the elements required to be satisfied and other factors the Court will consider in making a determination.

What is Defamation?

Defamation is the publication (or publications) of unsubstantiated facts by a Publisher to a third party that has caused serious harm to the reputation of the Aggrieved. A claim in defamation, in the civil sense, falls within torts (also known as a civil wrongdoing).

Under the Act, only individuals or excluded corporations have a cause of action for defamation. A corporation is an excluded corporation if:

The objects for which the corporation is formed do not include obtaining financial gain for its members or corporators (i.e. charity); or
It has fewer than ten (10) employees (incl. part-time employees) and is not an associated entity of another corporation, and the corporation is not a public body.

Elements of Defamation

To be successful in a claim of defamation, the Aggrieved must satisfy the following elements:

The Publisher has made a publication - The Act outlines that a publication can be made verbally or be in writing, including but not limited to, a google review, a social media post or share, an article, blog, video, letter, note or by any other means of which something may be communicated.
The publication was made to a third party – This can occur by reason of the Publisher communicating directly to the third party, communicating publicly with the third party or the third party can simply be the public (i.e. google review).
The publication is defamatory – The publication is not true or false and causes a reasonable person to think less of, avoid or shun or otherwise cause damage to the reputation of the Aggrieved.
The publication has caused serious harm to the Aggrieved – It is not sufficient for the publication to simply hurt the feelings of the Aggrieved, but the Aggrieved must establish that the publication has caused serious harm, either economically or non-economically (i.e. stress, anxiety, depression or humiliation). Due to the emphasis now placed on the serious harm threshold, this will be elaborated below.
The publication is about or identifies the Aggrieved – The publication clearly identifies the Aggrieved, or a reasonable person in reviewing the publication would be aware that that it is about the Aggrieved.
There was no lawful basis for the publication – The publication was no made for any lawful purpose or basis, which may include Court proceedings.

Serious Harm Threshold

In 2021, the Act was amended to remove the defence of triviality and introduce the serious harm threshold. This had the consequences of shifting the burden of proof from the defendant to any plaintiff, to demonstrate that the publication has caused, or is likely to cause, serious harm to their reputation.

Section 10A of the Act outlines that it is an element (serious harm element) of a cause of action for defamation that the publication about a person has caused, or is likely to cause, serious harm to the reputation of the person. However, harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

Recent relevant cases on the serious harm threshold include:

1. Lachaux v Independent Print Ltd [2019] UCKSC 27 (Lachaux):

The UK Supreme Court undertook a substantive examination of the serious harm requirement. The Court considered section 1 of the Defamation Act 2013 (UK) [similar to section 10A (serious harm threshold) of the Act in Queensland] which stipulates:

‘(1) A statement does not qualify as defamatory unless its publication has resulted in, or is poised to result in, significant damage to the claimant’s reputation.

(2) For the purposes of this clause, damage to the reputation of a profit-seeking entity does not constitute ‘serious harm’ unless it has led to, or is likely to lead to, substantial financial loss for the entity.’

The Supreme Court clarified that merely having a defamatory tendency is insufficient and that the burden of proof lies with the claimant to demonstrate that the publication had indeed caused serious harm.

2. Rader v Haines [2021] NSWDC 610 and Rader v Haines [2022] NSWCA 198:

The main issue considered by the Court is whether an email to the parents of the plaintiff (Rader) was sufficient to constitute serious harm to their reputation, specifically where the email caused Rader’s parents to shun or avoid him for a period of time.

In considering the case of Lachaux (above), Gibson DCJ concluded that:

‘[124] When assessing and determining serious harm, the Supreme Court accepted Warby J’s approach of using a combination of the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. In particular, as the highlighted portion above sets out, part of the test of the defamatory character of the statement will place weight upon publications to circumstances previously only relevant to mitigation, such as that the matter complained of was only read by a small number of people.

[125] Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon “a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated” (Lachaux at [14]).’

The District Court held that Rader failed to establish that they had suffered serious harm, even if they were to accept Rader’s evidence at its highest.

As a result, a judgment was made in favour of the defendant (Haines). Rader did not agree with this decision and appealed the judgment to the New South Wales Court of Appeal. The Court upheld the original decision and dismissed the appeal, with an order that Rader be liable for the legal costs incurred by Haines.

In reaching their decision, the Court of Appeal held (at [29]) that the following conclusions of the trial judge accord with the relevant propositions set out in Lachaux (above):

'(1) Section 1 introduced a “new threshold of serious harm which did not previously exist”, and “Claimants therefore need to establish that serious harm has been caused or is likely to be caused as a fact”;

(2) More than the mere inherent tendency of the words is required, even where the words amount to a grave allegation against the plaintiff, and special emphasis is to be placed on the circumstances and extent of publication”;

(3) Serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation because harm depends upon ‘a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated; and

(4) Findings of serious harm should be based on the circumstances and extent of publication, whether the publication was likely to have come to the attention of others at the time or in the future and the gravity of the imputations. The meaning of the words, the situation of the plaintiff, the circumstances of publication and the inherent probabilities are also relevant.'

3. Selkirk v Hocking (No 2) [2023] FCA 1085:

The main issues for the Court to consider is whether the plaintiff (Selkirk) had suffered serious harm and if so, whether that harm was suffered by her own conduct or by reason of the publication.

Selkirk was charged and convicted with sixteen (16) counts of dishonestly obtaining a financial advantage by deception one count of obtaining a financial advantage. The defendant (Hocking) and other related publishers published articles regarding Selkirk’s convictions.

Selkirk appealed the convictions to the NSW Supreme Court, which resulted in the original decision being overturned as the prosecution were unable to establish the provenance of goods and to prove the dishonesty element. The appeal was allowed, conviction was set aside, and the matter was remitted to the local Court for re-determination. During the Hearing, Selkirk admitted to performing the acts of deception and the conduct subject to the charges.

Following the success of the appeal, Selkirk initiated defamation proceedings Hocking and other publishers as they failed to advise that the convictions had been appealed and set aside. Selkirk alleged that these publications were damaging to her reputation.

At Trial, Selkirk did not deny that she had, in fact, committed the deceitful acts. As a result, the Federal Court held that Selkirk had failed to establish that the publications had or were likely to cause serious harm to her reputation

The Federal Court outlined the following reasons for their decision:

[83] The only particular or serious harm alleged by Ms Selkirk about which any evidence was led was that her “professional reputation depends on her integrity as an admitted member of the legal profession and to have an unblemished reputation”; that the “imputations as alleged pose a serious risk to [her] ability to obtain gainful employment in a legal or executive role” and are matters which are “likely to prejudice [her] ability to obtain such employment”.

[84] The immediate difficulty with the plea, and with the evidence led in support of it, is that neither address the critical question of whether the publication of the article caused any, let alone any serious, harm to Ms Selkirk. As Lord Sumption said in Lachaux v Independent Print Ltd [2020] AC 612 at [14]: “... [t]he reference to a situation where the statement ‘has caused’ serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. The same must be true of the reference to harm which is ‘likely’ to be caused”.

[85] Here, the evidence goes no further than vague assertions by Ms Selkirk that between February 2022 and September 2022, when she obtained employment in her field, the process of finding a job did not go very well, offers went cold and a number of referees were not contacted. Even if those things were attributable to the publication of the article – and I emphasise, there is no evidence of that whatsoever – I do not accept that those things constitute “serious harm” within the meaning of s 10A (1) of the Defamation Act, in any event.

[86] Further, Ms Selkirk has admitted through her counsel, before the Magistrate and on appeal, and in the witness box before me, that on 17 separate occasions over a very significant period of time (more than two years), she engaged in the acts of deception set out at paragraph [70] above. In those circumstances, I do not accept that even widespread publication of the article telling the tale of her convictions and of her intention to appeal them, could have caused her reputation to be made worse. It is true that the convictions were quashed on grounds that included that the Crown had not proven “dishonesty” within the meaning of the statute, but where Ms Selkirk conceded that what she did was nonetheless deceitful, in my view she proffered a distinction without a relevant difference.

[87] Put another way, and to adopt what Davis LJ said in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334; [2018] QB 594 at 620 [79], there is no evidence that anyone “thought any the less of [her] by reason of the publication”.

[88] I should add that in her 1 August 2023 affidavit, Ms Selkirk deposed as follows:

I estimate that the lost opportunities of imminent offers of employment, over the period from January 2022 to well after June 2022 (up to end of September 2022), cost me a financial earning capacity in the vicinity of $25,000.00(+)/ month (plus Super) (before tax). This economic cost represents lost earning income ...

[89] I ruled that (and like) evidence to be inadmissible, because it was, among other things, conclusory and without evidentiary foundation. But in any event, it leads nowhere because no evidence was sought to be adduced to prove that the salary “lost” was caused by the publication of the article.

[90] Lastly, there is the fact that the number of persons to whom the article was published was, on any view of the mater, very limited. As Davis LJ also said in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334; [2018] QB 594 at 620 [79], “[t]here may ... be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could ... be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited”. This case is one such instance.

[91] For each of those reasons – and each is sufficient on its own – in my view, Ms Selkirk has not proven that the publication of the article has caused, or is likely to cause, serious harm to her reputation.

Concerns Notice

A concerns notice is the prerequisite step for an Aggrieved to complete. Section 12B of the Act states that an Aggrieved cannot commence defamation proceedings unless:

The Aggrieved has provided the Publisher with a concerns notice;
The defamatory imputations to be relied upon by the Aggrieved in the foreshadowed proceedings were particularised in the concerns notice; and
The Period for an Offer to Make Amends has lapsed.

Section 12A of the Act, stipulates that for the purposes of the Act, a notice is a concerns notice if, the notice is:

In writing;
Specifies the location where the publication was made or can be accessed (i.e. webpage address);
Informs the Publisher of the defamatory imputations that the Aggrieved considersare or may be made about the Aggrieved within the publication;
Informs the Publisher of the harm that the Aggrieved considers to be serious to their reputation, caused or likely to be caused by the publications;
If the Aggrieved is an excluded corporation – also informs the Publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication.

If practicable, then the publication should be provided to the Publisher together with the concerns notice. Once the Aggrieved has served the concerns notice on the Publisher, the Publisher may make an offer to make amends within the Period for an Offer to Make Amends.

What is an Offer to Make Amends

An offer to make amends is exactly what is sounds like, being an offer by the Publisher to make amends for any harm caused to the Aggrieved resulting from the publication.

Section 15 of the Act stipulates that an offer to make amends must be as follows:

It must be in writing; and
It must be readily identifiable as an offer to make amends under this division; and
Must state that the offer is open for acceptance for at least 28 days from the date of the offer; and
If the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited; and
Must include an offer to, to publish or join in publishing, reasonable correction of, or a clarification of or additional information about the publication (this may include an apology or a retraction of the publication). If the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; and
If material containing the matter has been given to someone else by the publisher or with the publisher’s knowledge—must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the Aggrieved; and
Must include an offer to pay the expenses reasonably incurred by the Aggrieved before the offer was made and the expenses reasonably incurred by the Aggrieved in considering the offer (i.e. legal costs or otherwise).

If the Aggrieved accepts the offer to make amends and the Publisher carries out the terms of the offer, then the Aggrieved cannot assert, continue or enforce an action for defamation against the publisher in relation to publication.

If an offer to make amends is made by not accepted, it is a defence available to the Publisher if:

the Publisher made the offer as soon as reasonably practicable after the Publisher was given a concerns notice (and, in any event, within the Period for an Offer to Make Amends); and
the Publisher was ready and willing, on acceptance of the by the Aggrieved, to carry out the terms of the offer; and
in all circumstances the offer reasonable – this is determined by the Court by considering the relevant factors and applying their independent judgment regarding the offer.

Period for an Offer to Make Amends

Pursuant to section 14(2) of the Act, the Period for an Offer to Make Amends is generally twenty-eight (28) days after the Aggrieved issued the concerns. However, in circumstances where the Publisher makes a request for further particulars about the concerns notice, the Period for an Offer to make Amends is within fourteen (14) days after the Aggrieved provides the further particulars to the Publisher.

An offer to make amends cannot be made if the Period for an Offer to Make Amends has expired, or the Publisher has filed a defence in any proceeding brought by the Aggrieved regarding publication.

Naturally, a Publisher can make an offer to settle at any time prior to or throughout any defamation proceedings, which if accepted by the Aggrieved, while result in the resolution of the dispute and/or proceedings.

Defences

Under the Act, the following defences are available to a defendant:

Defence of Justification (Section 25) – It is a defence to the publication of a defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
Defence of Contextual Truth (Section 26) – It is a defence to the publication of a defamatory matter if the defendant proves that (a) the matter carried one (1) or more imputations that are substantially true (contextual imputations) and (b) any defamatory imputation that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
Defence of Absolute Privilege (Section 27) – It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. This can include course of the proceedings of a parliamentary body or an Australian Court of Tribunal.
Defence for Publication of Public Documents (Section 28) – It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in (a) a public document or a fair copy of a public document, or (b) a fair summary of, or a fair extract from, a public document.
Defence of Fair Report of Proceedings of Public Concern (Section 29) – It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
Defence of Publication of Matter Concerning Issue of Public Interest (Section 29A) – It is a defence to the publication of defamatory matter if the defendant proves that (a) the matter concerns an issue of public interest, and (b) the defendant reasonably believed that the publication of the matter was in the public interest.
Defence of Qualified Privilege for Provision of Certain Information (Section 30) – There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that (a) the recipient has an interest or apparent interest in having the information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
Defence of Scientific or Academic Peer Review (Section 30A) – It is a defence to the publication of defamatory if the defendant proves that (a) the matter was published in a scientific or academic, and (b) the matter relates to a scientific or academic issue, and (c) an independent review of the matter’s scientific or academic merit was carried out before the matter was published in the journal by the editor of the journal (if the editor has expertise) or 1 or more persons with expertise in the scientific or academic issue concerned.
Defence of Honest Opinion (Section 31) – It is a defence to the publication of defamatory matter if the defendant proves that (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.
Defence of Innocent Dissemination (Section 32) – It is a defence to the publication of defamatory matter if the defendant proves that (a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and (b) the defendant neither knew nor ought reasonably to have known, that the matter was defamatory, and (c) the defendant’s lack of knowledge was not due to any negligent on the part of the defendant.

Section 24 of the Act stipulates that a defence to the publication of a defamatory matter may be defeated by proof that the publication was actuated by malice. In D.G. Certifiers Pty Ltd & Another v Hawksworth [2018] QDC 88, Rosengren DCJ relevantly stated: '[85] The privilege [qualified privilege] can be defeated where a defamatory publication is actuated by malice or some other improper extraneous motive, or if the defamatory matter has ‘gone beyond the limits of the duty or interest’. It is the plaintiffs’ case that the publication of the reviews was accentuated by express malice. [86] Where defamatory statements are published on a privileged occasion, a court should not be quick to find evidence of malice. This is because to do so would considerably restrict, and perhaps even defeat the legal protection conferred on privileged communications. Malice must be the dominant motive for the defamatory publication. [87] The question is whether there is any evidence upon which a reasonable finding could be made that the defendant was actuated by malice. It must be proven by the evidence. It is usually inferred from a defendant’s conduct and what he knew and did.'

Damages

Under section 34 of the Act, the Court in determining the amount of damages to be awarded, must ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

The maximum amount of damages for non-economic loss that may be awarded is $250,000.00 and is only to be awarded in the most serious cases. It is also at the Court’s discretion to make an award for aggravated damages, if it is warranted in the circumstances. There are however no exemplary or punitive damages that can be awarded for defamation.

Section 38 of the Act provides the following factors (among others) in mitigation of any damages:

the defendant has made an apology; or
the defendant has published a correction (or retraction) of the publication; or
the plaintiff has already recovered damages for defamation; or
the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
the plaintiff has received or agreed to receive compensation for defamation.

Conclusion

In conclusion, defamation is a significant legal issue that can have profound implications on an individual’s personal and professional life. Understanding and navigating the complexities of defamation law is crucial in protecting one’s reputation.