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Is it defamation if it is true? Understanding the consequences of making statements about someone else publicly

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Attwood Marshall Lawyers Commercial Litigation Associate, Georgia Taylor, discusses defamation and what it takes to be held accountable for something you publish about someone else, including private messages you may send to people on Facebook!

Introduction

After a relationship breaks down, there are usually emotionally charged exchanges between the aggrieved parties. In the digital world that we now live in, social media has become the main arena where scorned individuals take their grievances to the public. Facebook, Instagram, YouTube or TikTok are just some of the many social platforms people share intimate details about their former partner, and vent about their relationship experience. Entertaining it may be for the innocent bystanders, however, many people do not realise the consequences that may arise when they are mindlessly scrolling for the ‘spilt tea’.

It is rare, and to go as far to say as unheard of, for former partners to take each other to Court for defamation (of character). These nasty details are usually intertwined in a Family Law dispute or a war of words between friendship circles. But alas, it can still happen!

Banking IT Consultant, Constantine Arvanitis, is a recent example of how a defamation claim against former partners can come to life. Mr Arvanitis is taking one of three former girlfriends to Court for defamation, over an allegedly damaging letter that was sent to his current fiancée, described in documents filed in the County Court of Victoria.

It is alleged that Mr Arvanitis’s multiple ex-partners told his current partner through a private letter that he was a cheater, liar, adulterer, had sold Viagra to his colleagues, and had a tendency to spend hundreds of thousands of dollars on cocaine. Now, those scorned individuals are answering not only to Mr Arvanitis’s new partner, but to the vast world of defamation law.

What is defamation?

My initial response was to sue her for defamation of character, but then I realized that I had no character” – Charles Barkley

Defamation is the tort or civil wrong which occurs when there has been material published that contains matters which damage a person’s reputation. If you have been wronged, a case for defamation against a person who has defamed you might sound easy on this definition, but that couldn’t be further from the truth. 

What is published material?

“If you haven’t got anything nice to say about anybody come sit next to me” – Alice Roosevelt Longworth

First, you must outline what is the published material which was the vehicle for the defamation. Most people would often presume that the published material would need to be contained in newspapers or on a broadcasting network (such as the case of Andrew Porter v Australian Broadcasting Network). But in the age of social media and Mr Arvanitis’s case, “published” could mean a Facebook post, Facebook comment, Instagram post, Tik Tok video, private social media group message, a letter, or oral conversations. The “published material” is not narrowed only to these categories and can be contained in any number of materials, as long as it is published to people other than you.

Was the published material about you?

“A coward talks to everyone but you” – Shannon L Alder

As defamation lawyers, one of our favourite comments we hear from people is “it wasn’t defamation because I didn’t name the person”, however this is a common misconception as you do not need to name someone to be able to identify who you may be referring to.

A “published material” can either name you directly or include content able to reasonably identify you from the material published.

The recent Christian Porter case against the ABC is a very good example of what can happen even if the person is not named. Sometimes, not naming the person can whip such a storm that everyone’s attention shifts to who it might be, as was the case with the former Attorney General.

Was it defamatory?

Truth is generally the best vindication against slander” – Abraham Lincoln

To establish if the material published about you is defamatory, it is up to the Court (Judge or Jury) to decide if it was partly or substantially not true and isn’t subject to a type of privilege, opinion, or triviality. The defences to a defamation claim can be complex and it is important to consider these factors prior to commencing Court proceedings.

If I have been defamed what do I do?

The first thing to do is to ensure that you keep the evidence of the published material. In the case of an online post make sure that you have a screen shot or photograph of the material you believe to be defamatory. If you do this, ensure that you can clearly see the name of the person who has made the post or comment, where the post was made and the time it was published, as well as the time it came to your attention.

If it is by other means, keep as much documentation as possible. For example, in the case of defamation by conversation, ask for a text message from the person identifying the defamation including the time and place and of course who made the defamatory imputations.

There is a strict time limit on making a claim for defamation, and often there are steps to be taken under the legislation relevant to your case before you are able to commence Court proceedings. It is always recommended to get legal advice from an experienced defamation lawyer as soon as possible to find out where you stand and what options are available to you.

Defamation – a changing landscape

Cases in defamation are on the rise in Australia, and we don’t foresee this slowing down. With the likes of our highest government officials and Hollywood stars taking their matters to the Courts, it only prompts those who have suffered similar wrongs to act and seek damages for their losses.

Ben Roberts-Smith vs Sydney Morning Herald, Canberra Times, The Age

One of Australia’s highest-profile cases of defamation commences in court this week with former SAS corporal and recipient of both the Victoria Cross and Medal for Gallantry, Ben Roberts-Smith, taking three Australian newspapers to Court for defamation.

He is suing the Sydney Morning Herald, the Canberra Times and the Age over a series of reports published in 2018 which he alleges are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes including murder”.

He denies the allegations and claims that he has been greatly injured by the publications and that his business, personal and professional reputation has been and will be brought into public disrepute, odium, ridicule and contempt as a result. The newspapers’ defence alleges Mr Roberts-Smith committed or was complicit in other murders during his time in Afghanistan and they will be running a truth defence to their reporting. The case is set for a momentous 12-week trial.

Geoffrey Rush vs Rupert Murdoch’s Nationwide News

In April 2019, Geoffrey Rush was awarded 2.9 million Australian dollars in his defamation case against Rupert Murdoch’s Nationwide News. This was the largest payout to a single person in Australia’s history.

Two front page articles were published in late 2017 by The Daily Telegraph that depicted Mr Rush as a pervert and sexual predator. Mr Rush accused the newspaper of wrongly portraying him as having behaved inappropriate toward a female co-star. These articles were published at a time when the “Me Too” movement had just gone viral on a global scale.

The publisher mounted a truth defence and argued the various imputations carried in the articles were substantially true. The Judge described the newspaper’s articles as “recklessly irresponsible journalism” and rejected the publisher’s truth defence.

Rebel Wilson vs Bauer Media

In 2017, Rebel Wilson was awarded 4.7 million dollars in her defamation case against Bauer Media. Ms Wilson sued Bauer Media over a series of magazine articles that were published in 2015 that depicted her as a serial liar. The amount was later reduced to $600,00 by an Appeals Court after the Court found a lack of evidence that Ms Wilson suffered an economic loss of the magnitude of the original award.

Australia’s Defamation Laws have been constantly evolving over the past 15 years, with states and territories banding together, led by New South Wales, to concoct the Uniform Defamations Act. This uniform legislation removes some (but not all) of the expense and difficulty in commencing and running a case for defamation.

This space will be ever changing, and we look forward to keeping you updated.

How can Attwood Marshall Lawyers help?

Our experienced defamation lawyers can assist in all defamation matters to help you protect your personal and professional reputation. If something has been written, said, or published about you which you believe has damaged your reputation, contact our team to find out where you stand.

We can be contacted on our 24/7 phone line on 1800 621 071, or by contacting Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au

You can visit our experienced team at any of our conveniently located offices at Robina Town Centre, CoolangattaKingscliffBrisbaneSydney or Melbourne.

Read more:

Man sues Google for Defamation and wins

Behind the Law: Geoffrey Rush Case Against Daily Telegraph

 

 

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