Edmonds Judd

defamation

I stand by what I said! Can I defend a claim for defamation?

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There are defences to defamation, but they can be difficult and expensive to prove. We recommend getting legal advice before you publish because the defences are technical and can be difficult to prove.

 

Some of the key defences are:

 

Truth: you might know something is true, but actually proving it is a whole different matter. You also have to prove the truth of any defamatory implication that might be derived from your statement. It’s also worth keeping in mind that defamation law works on the presumption that the defamatory statement is false, so the onus is on you to prove.

 

Honest opinion: if you can show that what you have said is your honest opinion, then you might have a defence. Your statement must be recognisable as being an expression of an opinion. But, that honest opinion has to be based on true facts that the person reading your statement can use to assess the validity of the opinion for themselves. The defence can be destroyed if your opinion isn’t genuinely held by you or you made the statement for an improper purpose.

 

Responsible communication on a matter of public interest: there are two elements to this defence. First, you have to show that the communication was responsible. There are a lot of factors involved in showing this, including showing the steps you took to verify the allegation, the reliability of any source you’ve relied on, and whether you have sought comment from the target of your statement and accurately reported their response.  Secondly, you need to show that you were commenting on a matter of public interest. This doesn’t mean something that is interesting (like gossip), but things of substantial concern that effect the welfare of citizens, for example, the management of publicly funded services by local councils.

 

Common law qualified privilege: this defence covers situations where you have a moral, social, or legal duty to communicate your statement and that the recipient of your statement has a corresponding interest in receiving that communication. A common situation covered by qualified privilege is when a prospective employer calls you for a reference for someone that they are thinking of employing. It is unlikely that you will be able to successfully rely on qualified privilege if your statement is published to the world at large – like in a public Facebook group.

 

Keep safe over the holiday season!

 

Joanne Dickson

 

I can say anything I like online, can’t I? No!!

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Be careful about what you post online over the holidays, including your podcasts. If you post something harmful or damaging to someone else or their business, you could be in for a world of pain! This includes simply sharing something that someone else has said or written.

 

Even if what you are saying is technically true, you can still be sued for defamation because it is the truth of the implications in that statement you would have to prove, not the truth of the actual words that you used.

 

You could be liable for damages (that is, to pay money to the person or business you said bad things about to “restore” their reputation), and significant legal costs if the matter goes to court.

 

In one case, photos were posted on a community motocross Facebook page, with statements alleging that a person in the photos was cheating by holding onto his son’s bike. The Court awarded damages of $10,000. In another case, where statements posted on Instagram alleged serious criminal conduct, damages of $170,000 were awarded.

 

If someone is threatening to sue you for defamation, one of the best things to do is quickly seek legal advice from a defamation lawyer. Defamation is a technical area of the law and full of “traps” for the unwary – you can accidentally make things worse when you’re trying to make things better.

 

You should also consider removing the offending post or comment until you have obtained legal advice. This can help limit your exposure to damages. This also applies if you are the administrator of a group that allows members to make posts or comments – you can become liable for what someone else says if you don’t.

 

Wishing you a court proceeding-free holiday season!

 

Joanne Dickson