Recently, movie star Rebel Wilson made headlines for winning a defamation case against Bauer Media, a publisher of women’s magazines. She alleged that a series of eight magazine articles attacking her character were defamatory, led to her losing movie roles, and caused significant damage to her reputation. The six person jury agreed with her. The articles in question claimed that Ms Wilson had lied about her name, age, and upbringing in a working-class family. Following the publication of the articles, Ms Wilson’s career went down hill. She lost a role in Kung Fu Panda III because Dreamworks executives thought she was too ‘divisive’ for a children’s film.
Rebel Wilson’s case highlights some of the risks in making public statements that could damage someone’s reputation. In our digital, hyper-connected world, it is now easy for people to post defamatory comments on social media, websites and message boards. However, there is a difference between defamatory statements, and statements that are just negative comments about a person.
What is defamation?
Defamation is communication which harms the reputation of a person. All Australian states and territories have uniform defamation legislation. To win a defamation case, the plaintiff must prove that the communication:
has been published (i.e. not made in private);
identifies the plaintiff; and
The most difficult thing to prove is that the communication is defamatory. The defamatory nature of content could arise from the ordinary meaning of what is published, or a specific meaning that some people would understand because they have particular knowledge. When a defamation case is in court, a jury will need to consider whether, to the ordinary reader/viewer/listener, the communication has a meaning that lowers or harms the plaintiff’s reputation. In Wilson’s case, the jury found that the defamatory articles did have this effect, and were causally linked to damage to her career.
Who can defame?
Obviously, an action for defamation can be brought against the original publisher of the defamatory material. However, actions can also be brought against people who republish the statement. It is not a defence to say that you are just repeating rumours! Liability for defamation can arise from a positive act (e.g. posting a blog containing defamatory content) or from passive acts (e.g. failing to remove defamatory content written by someone else from a website that you manage). Recently, the Maritime Union of Australia was successfully sued for publishing a hyperlink to a defamatory article.
Who can be defamed?
Any person can be defamed, but a person cannot be defamed after death.
Usually, companies cannot sue for defamation. However, there are some exceptions for not-for-profit organisations and small companies. If someone makes harmful statements about a business or product, a company could pursue other legal avenues, or may be able to sue for defamation of their officers or employees.
Are there any defences to defamation?
There are a range of defences that could be used to combat an action in defamation. The most well known are ‘honest opinion’ and truth.
How can you avoid being sued for defamation?
There are a variety of steps you can take to manage the risks of defamation proceedings:
When editing, check that there are not any unintended defamatory meanings that could be interpreted from the communication. Make sure you consider the communication as a whole, and put yourself in the shoes of anyone who is identified. Remove or clarify any potentially risky statements or representations.
Weigh up the benefits of publishing the material against the potential risks and repercussions.
Consider the application of any relevant defences. Is the publication substantially true? Is it clear that what is being presented is opinion rather than fact? Could other defences apply?
If someone complains or threatens action, consider whether you wish to apologise, correct or retract the published material. Seek legal advice before responding to any threats of legal action.
If you think someone has defamed you, or someone has threatened with you with legal action for defamation, please give Jenkins Legal Services a call on 02 4929 2000 or email firstname.lastname@example.org.