Defamation
Defamation is a communication (written or spoken words, pictures, graphics, gestures, etc) from one person to another that lowers or harms the reputation of an identifiable third person where the communicator (the publisher) has no lawful defence. The law of defamation aims to balance free speech with the right of an individual to enjoy a reputation free from an indefensible attack. The essence of a defamation action is damage to reputation, not that the publication was untrue, or that it infringed on the privacy of the plaintiff (the person who brings the law suit) or that it upset or hurt the plaintiff’s feelings.
There can be no defamation unless the person about whom the communication is made is identifiable in some way. At its simplest, that will be when the plaintiff is actually named, but even if the plaintiff is not actually named, other information may achieve the same result. For example, the use of a false name may not avoid a communication being defamatory if the plaintiff can be identified by other means.
In all States and Territories of Australia, companies (except for very small, independent ones) and other organisations with a ‘legal personality’ (eg. incorporated associations, trade unions, local councils) cannot sue for defamation.
The key issue in a defamation action is damage to a person’s reputation. The test of whether a communication is defamatory is: ‘Does the communication lower/harm the plaintiff’s reputation, hold the plaintiff up to ridicule, or lead others to shun and avoid the plaintiff?’ This is judged from the viewpoint of ‘ordinary reasonable people in the community in general’ and in light of contemporary standards.
The meaning that is argued over (the ‘imputation’) might not be what the communicator meant to convey. The court will look at what it considers the ordinary reader or viewer could have understood the communication to mean. This may differ from what both the plaintiff and the defendant think.
Even if something is, at first glance, defamatory, there are several important defences under the law of defamation. In the main, these defences include:
1. Honest opinion (previously known as fair comment)
2. Justification/Truth
3. Triviality
4. Fair reporting
5. Innocent dissemination
Before you Post
• Consider the context of what you are saying. What meanings arise? Might they be defamatory? Try to put yourself in the position of potential plaintiffs.
• Check who is identified. Just because you refer to someone by their Whirlpool user name doesn’t mean there aren’t people who know the real identity behind the user name.
• Is your post adding any value to the discussion? Consider the benefits of posting against the risk of being sued for defamation; in any Court case, you will have to take responsibility for what you have said.
• What defences might be relevant? If it is meant to be comment, ensure that it is clearly identified as such (for example by adding “In my opinion …” and that the facts on which it is based are stated or obvious). Try to focus on issues rather than personalities.
• If you want to argue that the defamatory imputations are true, how will you prove it? Remember proof has to be to the stringent standards demanded by a court.
What if you think you have been defamed?
• Herring the post and/or contact a moderator. Explain what you think is defamatory and why you think so. Moderators will review the posts, and remove threads or posts as required under Whirlpool’s own forum rules. Moderators may also seek the advice of Whirlpool’s legal team.
• If you believe there are specific users making inappropriate comments about a person or business, please provide any additional information that may be helpful in verifying whether this person is in fact doing so maliciously. This information will also assist in determining how best to deal with the user in question.
• Take the time to politely post a response that puts your (alternate) point of view.
See also: Whirlpool Legal Threats Policy
References:
: The Law of Defamation- For Material Published After 1 January 2006
News Alert - New uniform defamation laws
