Legal Practice Briefing No. 28

Number 28

25 September 1996

DEFAMATION AND THE PUBLIC
SECTOR

This briefing covers the elements necessary
to establish liability for defamation, the defences which
may be available, and factors of special relevance to Commonwealth
officers. Noting that liability in defamation is governed
by State and Territory law, there are differences between
the States and Territories. Accordingly, when considering
a particular case, it is necessary to examine the State
or Territory legislation in the jurisdiction(s) to which
the case relates. However, the following basic principles
are generally applicable throughout Australia.

What is Defamatory?

A defamatory statement is one which 'tends to lower a person in the estimation
of his fellows by making them think the less of him' or which causes the person
to be 'shunned and avoided'.1 The
applicable standard of opinion is that of ordinary members of the community
applying current community standards.2 While
this test is easily enough stated there is, of course, substantial scope for
different opinions in particular cases.

Common examples of defamatory statements are attacks on a person's personal
or professional integrity or competence. Statements that a person is dishonest,
acting maliciously, or is professionally incompetent, are defamatory. However,
a statement can be defamatory even though it does no more than portray a person
in a ridiculous light, without attributing any moral blame to the person.

By way of example, it has been held that:

  • it is capable of being defamatory to say of a politician
    who is the leader of a political party that he has lost
    the confidence of a significant number of members of
    his party;
  • statements that natives had been 'indoctrinated and
    led astray' by self-appointed leaders 'who held power
    by threat of force' were defamatory;
  • a statement that a person was insane was defamatory.

Conversely, it has been held that:

  • a statement of an improper sexual association between
    two married persons, contrary to their respective marriage
    obligations, was not defamatory;
  • statements that a politician was actuated by motives
    of self-interest and that he had committed treachery
    to his Party, were not defamatory.

A statement may be defamatory, either because of what is expressly said, or
because of what is imputed. For example, it has been held that a statement
that a person has been arrested and charged with an offence is capable of
bearing the imputation that the police suspected the person of having committed
the offence and that they had reasonable cause for so doing.3 Conversely,
it was also held that a report that does no more than state that a person
has been arrested and is expected to be charged with a criminal offence is
not capable of bearing the imputation that the person is guilty or probably
guilty of that offence.

Who may be Defamed?

Any living person may be defamed. A dead person cannot be defamed but it is
possible that statements made about a dead person could indirectly defame living
persons who were related to or were otherwise associated with the deceased
person.

Also, any corporation, whether trading or non-trading, which can show that
it has a corporate reputation (as distinct from that of its members) which
is capable of being damaged by a defamatory statement, can sue in defamation
to protect that reputation, in the same way as can a natural person.4 Even
a non-trading corporation may need to engage in various activities. Thus, it
may need to borrow money, and its ability to do so may potentially be affected
by an attack on its credit worthiness. Alternatively, the corporation may need
to employ staff, and a statement that it engages in discriminatory or other
improper employment practices may potentially affect its ability to attract
staff of the right calibre. There will, of course, be certain types of statements
which cannot defame a corporation, for example, an allegation that a person
is a bigamist (but an allegation that a corporation is a murderer may well
be defamatory).

Clearly, allegations tending to harm a Member of Parliament and a Minister
in relation to their office can be defamatory.5

Despite the above mentioned principle concerning defamation of corporations,
it has been held that a corporate public authority was not entitled to sue
for defamation to protect its governing reputation. To allow it to do so would
impose a substantial and an unjustifiable restriction on freedom of expression,
since an action for injurious falsehood, or a prosecution for criminal defamation
(see page 6), provided the authority with the sufficient and necessary protection
it required in a democratic society.6 Thus,
a corporate public authority was held to be unable to sue in defamation for
a statement which reflected on it as such a body in relation to its governmental
and administrative functions. That prohibition does not affect the rights of
members or staff of the corporate public authority to sue for defamation in
relation to their own personal or professional reputations.

It is considered that this principle would be upheld by the High Court of Australia.

Identification of the Plaintiff

A person cannot recover damages for defamation unless the defamatory statement
sufficiently identifies that person as being referred to in the statement.
For example, it has been held that if a person stated that all lawyers were
thieves, no particular lawyer could sue that person unless there was something
to point to that particular individual lawyer.7 Conversely,
a statement referring to a Premier and his corrupt Government was held to have
been capable of referring to each Minister in that Government. To say that
some members of a narrow class were guilty of misconduct, without saying which
members, was to cast a slur on all of them.8

However, there may be circumstances where a reference to 'the Government' should
properly be understood as referring to a broader public sector or public service,
in which case there would be insufficient identification of an individual person
or group. Attacks on 'the Department' would also not generally sufficiently
identify an individual or group, but this would depend on the particular circumstances
of each case.

Publication

There can be no liability in defamation for a statement
unless that statement has been published to someone other
than the person to whom it refers. However, for the purposes
of defamation, publication means any communication to some
other person. For example, a personnel manager's dictation
of a report to his secretary for the purposes of typing
it was held to constitute publication of the report to
the secretary.9 Similarly,
a statement to a supervisor or a Minister will constitute
publication for the purposes of the law of defamation.

Liability for Re-Publication by Others

It is possible for a person who makes a defamatory statement
to incur liability for re-publication by another person
of that statement. For example, where a prominent politician
made a statement at a press conference, the natural and
probable consequence of his act was that his statement
would be repeated in the media, thereby making him responsible
for re-publication of the statement in the media.10 A
similar result would occur in relation to the issue of
a press release which was clearly intended to be re-published
by the media. The importance of this principle is, of course,
that the re-publication of the statement in the media will
normally cause far greater damage to the victim's reputation
than the more limited initial publication to the media
representatives.

Also, it has been held that the owner and secretary of a club could be liable
for failing to remove a defamatory notice placed on the club's notice board.11 This
principle could extend to the officer in charge of an office who failed to
remove a defamatory notice on the office's notice board.

However, a Government was not held liable for unauthorised publication resulting
from the wrongful taking of a report from a storeroom by an unknown employee
of the relevant Department, in circumstances where the Department had not been
negligent.12

Training Presentation Material

It is common in training material to depict persons conducting
themselves incompetently or improperly. In that situation,
it is important to make it absolutely clear that the material
is fictional. Also, as far as practicable, it is prudent
to ensure that the material does not in fact resemble a
real person.

Intention to Defame is not Necessary

It is well established that liability for defamation can
be incurred even though the person making the statement
did not intend to defame the plaintiff.13 For
example, an unintentional mistake which resulted in a Gazette
listing of a firm as being in bankruptcy, rather than as
merely being dissolved, was held to be defamatory.14

It is possible for a person in good faith to say something which is apparently
innocuous, but to incur liability in defamation because other persons who have
additional knowledge regard the statement as discrediting the person to whom
it refers. For example, a statement that a person wrote a particular book might
be thought by the maker of the statement to be innocuous. However, the statement
could be defamatory to someone else who was aware that the book had been criticised
for racist or other unacceptable content.

Defences

Truth

At common law truth is a complete answer to a claim for
defamation. However, in a number of jurisdictions in Australia
truth is not a defence unless publication was in the public
interest or for the public benefit.

In this regard, a distinction exists between a publication which is in the
public interest or for the public benefit, and a publication which is merely
of interest to the public. To allow the defence to be available for the latter
publication would render it available for mere gossip about prominent persons.

Fair Comment - Public Interest

This defence is available where:

  • a statement clearly distinguishes between fact and
    comment;
  • the factual part of the statement is true;
  • the comment is fair;
  • the comment is on a matter of public interest.

This defence is available to comments which, although
intemperate and unjust, were not beyond what a fair-minded
person could believe.15

The need to distinguish between fact and comment is critical to the availability
of this defence. For example, a bald statement that a person is a liar does
not make this distinction. To do so, the statement would need sufficiently
to set out the facts on which the comment was based, so that others could form
their own view as to the validity of the comment.

Constitutional Freedom of Speech

The High Court of Australia has held that there is implied
in the Commonwealth and Western Australian Constitutions
a freedom to publish material:

  • discussing government and political matters;
  • of and concerning Members of Parliament which relates
    to the performance by such members of their duties as
    Members of Parliament or Parliamentary Committees; or
  • in relation to the suitability of persons for office
    as Members of Parliament.

Publication of such material will not give rise to liability
in defamation if the defendant establishes that:

  • the defendant was unaware of the falsity of the material
    published;
  • the defendant did not publish the material recklessly
    (that is, not caring whether it was true or false); and
  • the publication was reasonable in the circumstances.

It is implicit from the High Court's decision that, although
the High Court was dealing with statements which were untrue,
the implied constitutional protection would extend also
to defamatory statements which are true.16

The correctness of this principle is about to be re-considered by the High
Court.

Absolute Privilege

Where absolute privilege is available, it is impossible
to incur liability in defamation, no matter how false the
statement in question and no matter how malicious was the
person who made the statement. Examples of situations giving
rise to absolute privilege against defamation liability
include a witness or lawyer making a statement in court,
a Member of Parliament making a statement or tabling a
document in Parliament, or a government official giving
evidence to a Parliamentary Committee.

It has been held that a report by the Australian High Commissioner in the United
Kingdom to the Australian Prime Minister, and the instructions given to the
High Commissioner by the Prime Minister, were absolutely privileged as being
communications relating to State matters.17 It
was held that a communication may be absolutely privileged as an act of State
although it relates to commercial matters. It has also been held that absolute
privilege attaches to a statement in a report made in the course of military
or naval duty and to communications relating to State matters made by one Minister
to another, or to the Crown. However, the High Court of Australia has questioned
the application of the privilege to military and naval matters, and has declined
to apply the privilege to police matters.18 The
High Court was divided on the question whether an Annual Report by the Commissioner
of Taxation to the Treasurer for presentation to Parliament attracted absolute
privilege.19 (If
reports do not attract absolute privilege, they can still attract qualified
privilege see below.)

Qualified Privilege

Statements which attract qualified privilege include:

  • a statement made in the performance of some public
    or private duty, legal or moral, provided that the statement
    is communicated to a person who has a reciprocal interest
    in receiving it;
  • a statement made in defence of an attack against the
    person making the statement.

Qualified privilege is not available where:

  • the statement is excessive for the purpose which attracts
    the privilege; or
  • the communication is activated by malice.

The nature and scope of publication covered by the defence
of qualified privilege depends on the circumstances of
each case. In some cases the defence has been held available
to a statement published to the general public.20

A complaint to a Member of Parliament, for passing to the relevant Minister,
about an officer of the Minister's department would be within the scope of
qualified privilege.21 Similarly,
a complaint to the police or other appropriate authority would be within the
scope of the privilege.

It has been held that a public official who, acting under the direction of
his principal, signs and publishes a defamatory statement, takes the benefit
of any privilege available to the principal but is liable for the principal's
malice.22

Qualified privilege is also available for a fair and accurate report of judicial
proceedings in open court and of Parliamentary proceedings.

In summary, any communication which a Government officer has to make for the
purpose of good government will not result in liability in defamation, provided
that:

  • the communication is made in good faith for that purpose;
    and
  • the communication is limited to a need-to-know basis.

However, it is prudent to avoid unnecessarily dramatic
or flowery language which might lead persons to believe
that the communication was activated by malice.

Statutory Privilege

There are various statutory provisions in effect conferring
qualified privilege on statements made in specified situations,
for example:

  • statements by the MPRA (section 80 Merit Protection
    (Australian Government Employees) Act 1984);
  • statements by, and complaints to, the Ombudsman (sections
    33 and 37 Ombudsman Act 1976).
  • reports on Commonwealth public servants (section 89A Public
    Service Act 1922).

Apology
A suitably prominent retraction/apology will normally reduce damages payable
for defamation and might even furnish a complete defence.

Remedies
The normal remedy for defamation is damages, which can include damage to reputation
and hurt to feelings.23 However,
in limited situations it is possible to obtain an injunction restraining the
making of a defamatory statement.

Injurious Falsehood
Injurious falsehood involves the malicious publication of a false statement
concerning a person or that person's property, which is disparaging of the
person's property or business and which results in actual economic loss to
the person.

Criminal Defamation
A criminal defamation generally requires, amongst other things, that the statement
is likely to lead to a breach of the peace.

Commonwealth Support for its Officers
Under section 21 of the Finance Directions, and related Guidelines,
the Commonwealth will normally support an officer who is sued for
defamation arising out of the officer's employment, provided that
the officer acted reasonably and responsibly and without malice.
Such support can extend to arranging the officer's defence at Commonwealth
expense and meeting any damages and costs that might be awarded against
the officer.

However, the Commonwealth's policy has been not to support a Minister or officer
who wishes to sue in defamation, even though the statement relates to the performance
of their official duties. It has been considered that the law provides a personal
remedy in monetary damages and that, if the Government were to fund actions
by its Ministers and officers in defamation, there would be a potential for
public perception that the Government was seeking to suppress legitimate criticism
of it. A public rebuttal of ill-founded criticism has been considered to be
the appropriate governmental remedy.

For further information please contact Barry Leader, Office of Litigation,
on (02) 6253 7064.

1 Fleming, The Law of
Torts 8th Ed. at page 525

2 Cairns v John
Fairfax and Sons Ltd (1983) 2 NSWLR 708

3Mirror Newspapers
Ltd v Harrison (1982) 42 ALR 487

4 Derbyshire
County Council v Times Newspapers Ltd (1992) 3 WLR 28 (CA)

5Pratten v
Labour Daily Ltd (1926) VLR 115

6Derbyshire County
Council v Times Newspapers Ltd (1993) AC 534 (HL)

7Eastwood
v Holmes 175 ER 758

8Bjelke Petersen
v Warburton (1987) 2 Qd R 465

9Riddick v
Thames Board Mills Ltd (1977) 1 QB 881

10Sims v Wran (1984)
1 NSWLR 317

11Byrne
v Deane (1937) 1 KB 818

12Coulthard
v South Australia (1995) ATR 62, 184

13Cassidy
v Daily Mirror Newspapers Ltd (1929) 2 KB 331

14Shepheard
v Whitaker (1875) 10 LR CP 502

15Whitford
v Clarke (1939) SASR 434

16Theophanous
v Herald and Weekly Times Ltd (19945)

182 CLR 104

17M
Isaacs and Sons Ltd v Cook (1925) 2 KB 391

18Gibbons
v Duffell (1932) 47 CLR 520

19Jackson
v Magrath (1947) 75 CLR 293

20 for example, ABC
v Comalco (1986) 68 ALR 259; Adam v Ward (1917) AC 309

21R v Rule (1937)
2 KB 375

22Adam v Ward (Supra)

23Broome
v Cassell (1972) AC 1027

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

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