truth, money and law
This page considers the operation of defamation law in Australia.
It covers -
injunctions and prosecutions - the mechanics of litigation
defamatory print - pulling defamatory items out of the distribution
and the law
periods - when does the time for defamation action expire?
and damages - the basis of payments in defamation action
- some rules of thumb in managing risk
- if you are defamed
injunctions and prosecutions
In practice the management of defamation involving Australian
broadcasters and publishers is dynamic, with some calculation
of risk and action prior to and after publication by those
who consider that they have been defamed.
Book publishers, newspaper and magazine publishers, and commercial/public
broadcasters typically seek to minimise risk through advice
to staff, vetting of statements by editors and scrutiny by
legal counsel prior to publication. That scrutiny may be at
length and in great detail - typically line by line and word
by word - when reporting on someone who is characterised as
a 'colourful' entrepreneur and is perceived as likely to sue.
The impact of such scrutiny is unclear. Some editors and publishers
claim that they have not been deterred (and have taken pride
in not being cowed), claims substantiated by their colleagues.
Memoirs however suggest that other journalists, authors, editors
and publishers have indeed regarded discretion as the better
part of valour, suppressing some items or softening a text.
Vetting and legal advice may not be available to individuals,
particularly those working outside the media and unsupported
by a major publisher. They may be approached by an aggrieved
party in the course of preparing a book, article or documentary
- biographers have sometimes been 'warned off' by a lawyer's
letter when questioning came too close to home or a draft
was circulated - or first encounter a lawyer once publication
has taken place.
Some plaintiffs are satisfied with a retraction - deserved
or otherwise - which may or may not be provided. Others simply
head for the legal bearpit, demanding recompense for their
Entities that believe they have been defamed - or are merely
concerned to crimp negative coverage - will sometimes resort
to legal injunctions before a statement gets into print or
onto the air. That action has a legitimate place but can be
abused. Australian courts have been reluctant to prevent an
exchange of views on matters of clear public interest, although
there is disagreement about what constitutes that interest
and some plaintiffs are more equal than others.
Reluctance to intervene prior to publication reflects both
wariness about preemption and respect for established practice:
if you have been defamed find a lawyer and fight it out in
court (thereby potentially gaining some redress for your hurt
while more broadly encouraging good behaviour among the media
and your fellow citizens.
As a result, injunctions will often not be granted to stop
publication of allegedly defamatory material. The number of
injunctions sought each year, the number granted by courts
and the eventual outcomes are unclear.
Courts are willing to grant injunctions in some circumstances.
A publisher will generally not be prevented from publishing
allegedly defamatory material if it can be shown that there
is at least some hope of successfully defending any subsequent
The efficacy of issuing a defamation 'stop writ' regarding
publication of an allegedly defamatory statement is contentious.
Some have argued that preemptive writs automatically chill
further media discussion, with the law of contempt preventing
further publication once that subject is before the courts.
Australian courts have generally refused injunctions to protect
defamation proceedings. There is some acceptance of the notion
that if a defendant can persuade the court that a writ was
issued to intimidate a publisher rather than to vindicate
reputation that writ may be dismissed as an abuse of process.
Once a transmission has been made it is not possible to get
the electrons back to the transmitter. However, book publishers,
record companies and film producers are generally expected
to make some effort to withdraw offending items that are in
the distribution chain. That typically involves retrieving
books or other items from wholesalers and retailers, with
books for example being pulped or - more rarely - issued with
an inserted correction notice.
That withdrawal does not cover items that were sold before
an injunction or a defamation case was concluded. It is thus
possible to find books, newspapers, magazines and other items
that contain defamatory statements in private libraries and
in some public collections.
Republication of the statements in those works would, in many
circumstances (eg because the defamed individual is still
alive), be treated as a new defamation. It is not a defence
to argue that a statement was previously in print and is merely
and the law
Australian law is an adversarial system, in which a defamatory
statement is assumed to be false and must therefore be defended.
Truth was allowed as a defence in defamation for first time
in the UK under the 1835 Libel Act but - in practice - using
that defence can be difficult.
Some defendants - or potential defendants - have made public
apologies simply because they lacked the financial resources
to defend themselves in litigation that is generally acknowledged
to be expensive, stressful and uncertain. Others have published
statements that are indeed true but have lost subsequent defamation
cases because of the difficulty of proving that truth to the
It is important to recognise that a plaintiff bears no onus
for establishing the falsity of a defamatory statement or
proving that the defendant was guilty of malice or negligence.
As a result there will inevitably be instances where
is widely accepted that a defendant's statement was true
but that person is ordered to pay damages after being unable
to provide legally admissable evidence
opinion conversely believes that a defendant was properly
convicted, a belief based on a misunderstanding on the shape
of defamation action
In Australia, although the hurt may last for a lifetime a
plaintiff has a more finite time for taking action. That is
because claimants are expected to act quickly to vindicate
their reputations. Delay would also prejudice defendants in
gathering evidence to support the allegations, particularly
as witnesses' memories fade.
In general action for defamation must be initiated within
six years of publication. Prior to 2006 there were significant
variations: the NSW regime broadly featured a single year
from the date of publication, Victoria six years and the NT
expected action within three years. The uniform regime requires
that proceedings be started within one year after publication
of the defamatory material, except by order of the court in
Note that the period dates from the time of each publication:
republishing by another party starts the clock ticking from
the date of that republication rather than the first publication.
Damages are designed to compensate the plaintiff for -
loss (ie actual monetary through reduced/lost livelihood)
to reputation and (except where the plaintiff is a
damages' are intended to compensate the plaintiff for aggravating
the injury through related conduct, whether at the time of
publication or afterwards.
An apology or correction does not necessarily eliminate the
distress and hurt experienced by a plaintiff but is relevant
in common law to a court's assessment of damages, as it may
reduce or even eliminate the damage to reputation caused by
the sttement. Observers have noted that an apology published
during the course of a trial may lead to a reduction in the
costs awarded by a court.
A 2004 report by the National Defamation Research Project
explored perceptions of hurt. The Project's Roy Baker, in
exploring differences between personal values and what individuals
considered would be the position of the 'ordinary reasonable
person', commented that
time people sue for defamation, the question arises whether
the offending publication harms their reputation. Courts
generally don't decide these questions on the basis of hard
evidence. Instead they make assumptions, particularly about
what behaviour is considered unacceptable". ...
This is a real problem for the law. Courts ask judges and
jurors to put aside their own opinions and to consider those
of others. This allows these kinds of mistakes to creep
in. The effect of this is that we believe people are often
winning defamation cases against the media even when the
damage to their reputations is minimal.
highlighted later in this profile indicate the vagaries of
determining hurt - or merely the scope for punishing popular
villains and rewarding heroes. Footballer Andrew Ettinghausen
for example was awarded some $350,000 in 1991 for an article
imputing he'd allowed his genitals to be photographed while
in the shower. That award was reduced on appeal, with Justice
Michael Kirby commenting that
is simply impossible to suggest that compensation for harm
done to the reputation of Mr Ettinghausen required or permitted
general damages greater in magnitude than those awarded
to persons suffering profound quadriplegia.
decade later prominent MPs Abbott and Costello and their wives
received wives some $277,000 over gossip in Bob Ellis's Goodbye
Questions of damages are explored later
in this profile.
One response to uncertainties is to listen to your mother
(or your lawyer: "if you can't say something nice, don't
That advice would, of course, crimp much artistic criticism,
political discourse and social advocacy.
In practice it is probably not possible to evade risk. Guides
for journalists, other authors, advocates and editors have
instead sought to manage risk.
Rules of thumb have included suggestions that people -
the facts (enabling the audience to draw its own conclusion)
and be wary of commenting on someone's motivation, as that
is difficult to prove in court as a fact
that fact is differentiated from opinion by taking care
to feature signals such as "in my opinion"
records that substantiate a potentially defamatory statement
in discussing politics that the individual's motivation
may be less important than the effects of that person's
ask whether they can prove each statement and every part
of that statement
"inherently subjective and value-laden" language
in making statements
advice from specialists, including lawyers
opportunities for having a member of parliament or journalist
make the statement (one issue in considering questions of
anonymity and protection in whistleblowing)
that there can be strength in numbers, encouraging their
peers to publish and hoping that they will not be singled
when they have nothing to lose, on the problematical assumption
that plaintiffs are only interested in money and will thus
not proceed with action against someone who is too poor
to pay damages or costs.
latter point does not offer much comfort for many people,
particularly those who are dealing with an organisation or
individual with resources for litigation and a commitment
to silencing criticism.
libertarians have instead urged
use of anonymity
way to avoid being sued for defamation is to produce and
distribute material anonymously. Some individuals produce
leaflets. They are careful to use printers and photocopiers
that cannot be traced. At times when few people will notice
them, they distribute the leaflets in letterboxes, ready
to dump the remainder if challenged. Gloves of course -
no fingerprints. For those using electronic mail, it's possible
to send messages through anonymous remailers, so the receivers
can't trace the sender.
aside - true anonymity on
the net is harder than it sounds - that advice may be ethically
and legally problematical.
Some site operators have sought to shield themselves by articulating
and implementing defamation policies. One consumer review
site accordingly warns
can't allow potentially defamatory statements to be made
on eGullet, for our own protection and yours. So unless
you are in possession of certified medical proof that your
symptoms are without a doubt the direct result of eating
at a particular restaurant, don't say it. Don't even suggest
it. ... Before you spread a rumor, you have to ascertain
its truth or likelihood - otherwise you become responsible.
You are free to express opinions - even very harsh ones
- about a restaurant (though we discourage gratuitous harshness),
but when it comes to the factual stuff we've all got to
be careful. Saying a restaurant is closing when it isn't
can cause real economic loss.
is desirable in responding to approaches from plaintiffs or
their lawyers, given that a rejection or concession may be
used in subsequent litigation. The defence of an honestly-held
- although extreme or insulting opinion - will for example
be eroded by an unconsidered response that "I did not
There is similar disagreement about responses to defamatory
statements, online and off.
Some observers argue against "feeding the beast",
noting the financial and other costs of seeking justice (particularly
if defamed by a major media organisation, by someone using
parliamentary privilege or by someone who is vexatious and
has little to lose).
Others have urged action as a matter of principle but noted
indifferent community support, the expense of taking legal
action and the delays often encountered in litigation.
Some have highlighted opposition - through ignorance or on
principle - by Australian newsgroup moderators to altering
"the historical record" (an opposition that usual
evaporates when addressed through a lawyer's letter). The
operators of local and overseas search engines have adopted
a range of stances: some will delete archived defamatory statements
without much ado, others have reportedly claimed that deletion
is either not feasible or is not legally required.
More seriously, others have found that application of Australian
law overseas is difficult. Some of the cases highlighted later
in this profile feature problems where an Australian was defamed
in sites hosted in jurisdictions where hosts and moderators
are slow to respond or claim
that the offending statement is protected as free speech.
Particular cyberlibertarians - somewhat romantically in our
view - have argued that defamation law is necessarily repressive
and to be avoided. If you are defamed you should not resort
to a lawyer but instead vigorously 'outpublish' the defamer.
That recommendation assumes that truth will disseminate more
quickly than lies and that audiences have both the desire
and capacity to differentiate between falsehood and a counter-statement.
If you consider that you have been defamed some practical
actions are -
a copy of the defamatory statement (with details of its
location online and date of access), something that is particularly
useful if dealing with online 'hit & run libel'
how people are likely to construe the statement
the potential costs of securing justice
is advisable to make a copy of the statement before contacting
a webmaster or moderator.