In light of the recent publication of photos purportedly showing a semi-naked Pauline Hanson, we thought it was time to learn a thing or two about the law of defamation. The law of defamation not only has ramifications for newspapers, but also for blogs.
Main Entry: de·fa·ma·tion
1 : communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person.
Defamation is a tort (ie, a legal wrong). A publication will be defamatory if it tends to injure reputation by:
- disparaging a person;
- causing others to shun or avoid a person; or
- subjecting a person to hatred, ridicule and contempt.
If an individual is defamed, then he or she has a right to damages for the injury to reputation, as the purpose of the tort is to vindicate and protect reputation. Courts do not only look at the literal meaning of a defamatory publication, but also consider what the ordinary reader or viewer could have understood the publication to mean. This may be different from what was intended by the plaintiff or what was understood by the defendant.
Australia has enacted Uniform Defamation Laws (for example, the Defamation Act 2005 (Vic) in LE’s home State of Victoria).
As Marcellous has said in one post on a recent defamation case, it is not necessary for the plaintiff in a defamation case to prove that the defamatory statements are untrue:
If they are hurtful in the requisite way (ie, defamatory) it will be for the defendant to establish their truth by way of a defence. In the absence of such proof, the defamatory statements are assumed to be untrue and all the more shocking and harmful because of that.
On the other hand, a statement will not be defamatory merely because it is hurtful or upsetting to a person. It must affect their reputation in a damaging way.
Photos (such as those in the Hanson case) may constitute defamatory publications. Lawyers for Ms Hanson would argue that the publication of photographs which purportedly portrayed her in the nude subjected her to ridicule. There are parallels with the Andrew Ettingshausen case. Ettingshausen, a famed rugby league player, successfully sued GQ Magazine after it published a nude photo of him without first seeking his consent. At trial, he was awarded $350,000 in damages, but damages were reduced to $100,000 on appeal (see Australian Consolidated Press Limited v Ettingshausen (unreported, New South Wales Court of Appeal, 13 October 1993, Gleeson CJ, Kirby P and Clarke JA. Nor does a person necessarily have to be famous to succeed in an action for defamation. In Shepherd v Walsh  QSC 358, Sonia Shepherd successfully sued the publishers of a magazine called The Picture, after it published a nude picture of her. While the picture was of Ms Shepherd, she did not consent to its publication, and it was in fact sent in by her ex-boyfriend and his new girlfriend in revenge. (If you are interested in reading more on these cases, see David Rolph’s excellent article comparing these two cases — hat tip to Pete Black).
The Ettingshausen case suggests that even if the photos were shown to be of Ms Hanson, she may be able to recover damages for defamation. If they are not of Ms Hanson (or they are a Photoshop concoction), the newspapers will still be liable, as it does not matter if they published in error, or if they believed the photos were real.
Liability extends to all involved in the defamatory publication, including the writers, publishers and editors. Everyone involved in the publication is potentially liable. Liability can even extend to a situation where a rumour or comment made by somebody else is repeated. Nor does the intention of the publisher matter.
If the defamer works for a media organisation, the media organisation will be liable for the defamation too. This arrangement is typical, and known as vicarious liability — employers, in many circumstances, are liable for their employees’ torts. That said, the tort must be carried in the course of employment. For an act to be considered within the course of employment it must either be authorised or be so connected with an authorised act that it can be considered a mode — though an improper one — of performing it. Courts sometime distinguish between an employee’s ‘detour’ or ‘frolic’. For instance, an employer will be held liable if it is shown that the employee had gone on a mere detour in carrying out their duties, whereas an employee acting in his or her own right rather than on the employer’s business is undertaking a ‘frolic’ and will not subject the employer to liability. This scenario has particular force when the law is dealing with, say, a blogger who both works for a given media outlet (and has a named and hosted blog) and also freelances on their own account.
Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply. (emphasis added)
The three main defences are:
- fair comment
- qualified privilege
‘Fair comment’ is available when the publication is a comment (rather than a statement of fact). The comment must be:
- based on facts (which must be stated or sufficiently identified);
- relate to a matter of public interest; and
- an honest expression of the commentator’s view.
This is backed up by the statutory defence of ‘honest opinion’ (see eg, s 31, Defamation Act 2005 (Vic)), which is in similar terms.
In Australia, there is also a defence of ‘justification’, which applies if the defendant can prove the allegations are ‘substantially true’ (see eg, s 20 of the Defamation Act 2005 (Vic)). This can be compared to UK defamation law, where the defamatory statement is presumed to be false, unless the defendant can prove its truth. Presumably the UK laws are stricter because of the way in which the English tabloids (aka ‘Red Tops‘) operate.
‘Qualified privilege’ applies when there is a legal, social or moral interest or a duty to communicate something to a person and that person has a corresponding interest or duty to receive the information. This is what protects job referees, for example.
Some of these concerns apply with particular force to blogging, especially as it gets more popular. An important issue of which bloggers should be aware is malice. The Uniform Defamation laws expressly retain the common law rules in relation to malice (see eg, s 24(2), Defamation Act 2005 (Vic)). ‘Malice’ means ill will or spite towards the person defamed, resulting in publication for an improper purpose, or without an honest belief in the truth of the publication. If a defamatory publication is found to be malicious, then the defendant will not be able to claim the defences of fair comment or qualified privilege. A malicious publication may give rise to aggravated damages (ie, increased damages because of the damage to reputation and personal hurt). Conversely, an absence of malice may be an argument for mitigation of damages.
It’s not true to say that blogs can report without fear or favour, nor is it true to say that bloggers have no duty to those they do comment on. Bloggers have to be damn careful when they make allegations which may injure someone’s reputation (particularly their professional reputation) or cause others to avoid associating with that person.
Before you start speculating about the actions of a person in a way that may affect their career or reputation, you should contact someone to check your facts. Failure to even attempt to make contact with the subject of an allegation suggests malice, because the inference is that you do not have an honest belief in the truth of your publication.
Of course it is possible to speculate (like the English tabloids do), and if what you say is true, then the subject of the slur probably won’t fight too hard. But if you’re wrong, you will have to pay damages because you’ve undermined any defence you may have. That’s the way the tabloids play the game. Typically, they have big pots of money set aside to cover costs when the speculation turns out to be wrong. So if you’re going to speculate, make damn sure you’re right, and be prepared to wear the consequences if you’re not. Remember, too, that the law protects people equally: just because many people find Pauline Hanson’s politics obnoxious doesn’t mean she doesn’t enjoy the same rights at law as someone with different (or more moderate) views. This is an important aspect of the rule of law (‘treat like cases alike’, where the word ‘like’ refers to legally significant facts).
You don’t even have to be a blogger to be held liable for defamation. Marcellous has two great posts on people held liable for defamation in the context of a domestic dispute and another case involving a dispute between two sets of parents which entangled the children as well. These cases may seem extreme (as Marcellous points out), but they also show the law’s attempt to deal with damage caused by spiteful allegations and gossip. In some respects, they hark back to an earlier time — when your mother told you that ‘if you can’t say anything nice, don’t say anything at all’ — and expected you to take the principle behind her comment seriously.
In blogging, there may be situations where bloggers use personal information in order to ‘get at’ political opponents, but does not necessarily amount to defamation. Some use of personal information by other bloggers — while discourteous and mean-spirited — has no legal significance. This is simply because so many people publish vast amounts of information about themselves online. When they do so, they often fail to appreciate the internet’s ‘publicness’. Details about one’s relationships, where one lives, what one thinks of various public figures — all of this is the internet’s stock-in-trade. However, it is also perfectly possible for a political opponent to collate that information and use it as the substance of a nasty post. The key — if one is involved in heavy-duty political shitfightery — is not to make this sort of information available in the first place.
In our view, much of this vulnerability has come about because people have engaged in deeply personalised writing, inspired by the likes of Hunter S. Thompson. Unsurprisingly, those made the subject of attacks based on what they say online about themselves want the same sort of vulnerability in their opponents, and seek to make use of any information they may obtain accordingly. This is important to bear in mind, as is the fact that many people seem to be unable to perceive the difference between making use of publicly available information and going on what lawyers call ‘a fishing expedition’.
Hunter S. Thompson made ‘gonzo journalism’ popular — a personalised, emotional journalism which may have elements of sarcasm, humor, exaggeration and downright rudeness. However, doing what Thompson does requires an enormous amount of literary skill — as one veteran editor of our acquaintance put it, ‘you are the only person interested in your story’. Most of the time, the only information published by Thompson’s lesser imitators is exactly the sort of stuff that comes in handy during an inter-blog shit fight. Our advice? Put away thy Thompson, take out thy Orwell. George Orwell often wrote coruscating attacks on political and literary opponents during his lengthy career as a journalist and critic, but he was sparing when it came to inserting himself into the narrative. Perhaps intuitively, he knew that people were not interested in his story, but were interested in the subjects about which he wrote.
Why, you may ask, are two lawyers — one of whom is a libertarian — defending the tort of defamation, when its chilling effect on free speech is well documented? In short, we’re not defending it, at least not in its entirety. The simple fact is that this is how the law currently stands. One of us has made arguments to the effect that there are better ways to manage public untruthfulness and media irresponsibility than defamation, but for now, we’re stuck with defamation. It’s also wise to remember — especially with the old, common law torts — that they evolved over many centuries and have an important social function. For whatever reason — while people have valued their speech rights in the broadest sense since Magna Carta and the Glorious Revolution — they’ve also valued truthful speech, speech untrammelled by malice. Where the former has been threatened by the latter and vice-versa, a great mass of compromises have been hammered out. This is symbolised by the current dispute in the UK over poor litigants defamed in the Red Tops using ‘no-win, no fee’ arrangements to get at their tormenters.
The basic rules are as follows:
1. If you publish something unconfirmed, and it’s wrong, be prepared to take a hit.
2. If in doubt, take it out.
3. Make personal information available online at your peril.
4. If someone refuses to confirm or deny your speculation when you do contact them, it is in your interest not to publish anything unless you have very deep pockets.
It really is worth knowing a little bit more about the law of defamation if you are involved in political blogging. And maybe some of the media outlets involved in the Hanson photo debacle should take a refresher course too…
[Your friendly neighbourhood legal beagles, SL & LE]
Update by LE:
As Tim Macknay as pointed out in comments below, bloggers should be aware that they can still be sued even if the material is published on an overseas server. In the Joe Gutnick defamation case, the defamatory material was published on a server in the US by a US company, but Gutnick was able to sue in Victoria because the damage to his reputation occurred in Victoria.
Also, it seems Australia is not the only place where nude pictures of politicians have been appearing in public. Via Cearta.ie, I became aware that the issue has also surfaced in Ireland, albeit in a rather different way. Apparently a “guerrilla artist” sneaked into the National Gallery of Ireland and the Royal Hibernian Academy and hung some rather unflattering nude portraits of Brian Cowen, the Taoiseach (Prime Minister) on the walls. The whole thing has been dubbed “Cowengate”. As Eoin explains:
Once they were discovered, they were removed, but not before they had garnered sufficient publicity for RTÉ (Raidio Telefís Éireann, the national state broadcaster) to broadcast a story about them on the flagship 9:00pm television news programme.
It has been the occasion for lots of bad puns and some embarrassment on the part of the Taoiseach, the Gallery and the Academy, but in the ordinary course of things, they story should have blown over after about 48hours. However, things then took two turns for the worse. First, RTÉ apologised to Mr Cowen and his family or for any disrespect shown to the office of Taoiseach by their broadcast. Second, when the radio station Today fm covered the story, the Gardaí (the police) arrived at the station asking that an email with the artist’s details be handed over (.wav). Leaving the obvious jokes aside (because they have all been done better elsewhere), these two quite sinister developments raise some profound questions about freedom of expression in Ireland.
Eoin recommended this post by Sentence First on the issue – I’d have to agree that it’s an excellent post.