What is defamation?
With the increasing prevalence and popularity of social media and internet based communications, it has never been more crucial to contain your inner keyboard warrior lest your words (and digital footprint) come back to haunt you in the form of a defamation claim. With email frequently the medium of choice with strata communities (be it between lot owners, committees, resident managers or body corporate managers), it is critical to exercise caution and courtesy in all communications – particularly since the body corporate records may include many of those emails.
Defamation is generally a civil action for damage to a person’s reputation, caused by the written or spoken words of another person. Perhaps surprisingly to some, damage is not an element of defamation (although it may be the ultimate effect). Put simply, defamation is a civil wrong which:
The defamatory imputations may be apparent from the natural and ordinary meaning of the words (that is, the literal meaning), by reading between the lines (or what we call a false innuendo), or the literal meaning read in the context of other facts known to the recipient (a true innuendo). These imputations may expose the person to hatred, contempt, or ridicule, or lower their estimation in the minds of right thinking persons, causing them to think less of, or shun (avoid) them.
What defamation is not
To quash a few misconceptions, defamation notably:
Defamation has been operating inside a national framework since 1 January 2006 and in Queensland is governed by the Defamation Act 2005 (Qld) (the Act) alongside the common law. If you believe you have been defamed, the important things you need to consider before commencing court action include:
Any proceedings must be commenced within one year from the date of publication, after which it is statute barred.
As always a key issue is whether there are valid defences and whether it is worth litigating commercially.
Compensating the hurt and embarrassment
While there is a real risk of making a defamatory remark whenever another person is the subject of discussion, it does not necessary lead to significant awards of damages. The courts do have the ability to (and in fact have in the past) awarded nominal damages of as little as $1.00 where no loss has been suffered but the complainant is ultimately vindicated by the judgment.
A recent New South Wales case invoking English precedent also indicates that the Courts are no longer prepared to allow proceedings to continue where the cost of doing so far outweighs the harm for which judgment is sought.
For all the bush lawyers out there the following cases may be of some interest:
What should you do if you are concerned about defamation?
Some practical tips:
The above checklist is not a guarantee that your email / correspondence will not be defamatory, but will hopefully limit the possibility of proceedings being brought against you. If you are on the other side of the coin and think you have been defamed:
Strata communities and committee members may also wish to review whether their insurance policies cover liability for defamatory statements made by office bearers. Sometimes defamation can be excluded from cover.
Of course we can help if you need it.