Introduction to Defamation

In Australian media, defamation has gained significant attention. In particular, our everyday lives revolve around so much around social media, news outlets, and online networks. With the recent landmark case such as Wilson v Bauer Media Pty Ltd [2017] VSC 521 (“Bauer case”), these have raised new debates about defamation law and how it affects Australians.[1] In Bauer case, initially, Rebel Wilson was awarded $4.5 million in damages. This was considered the largest sum awarded by an Australian court for defamation damages.

Why is this important?

This is important because in our digital age, materials of a defamatory nature can spread at the speed of light. Online materials are also everywhere, published almost instantly and every day on the global web. More importantly, something could be considered defamatory without us even knowing. For example, in Bauer case mentioned above, Bauer Media published statements considered “defamatory” through print and online.[2]

In that same case, John J highlighted that damages in defamation must “demonstrate vindication of the plaintiff’s reputation.”[3] The elements include:

  1. Publication to a third party;
  2. Published material identifies that party; and
  3. Published material is defamatory or has a negative impact on the reputation on that party.[4]

Problem with Defamation: Corporations

The legislation prevents corporations from commencing defamation proceedings unless the corporation is an excluded corporation under the meaning of the Defamation Act 2005 (VIC).[5] The Defamation Act established in each state now operates throughout Australia in “substantially similar form.”[6]

An excluded corporation is defined by section 9(2) of the Defamation Act 2005 (VIC):[7]

(2)        A Corporation is an excluded corporation if –

(a)        the objects for which it is formed do not include obtaining financial gain for its members or corporations; or

(b)        it employs fewer than 10 persons and is not related to another corporation –

And the corporation is not a public body.

Section 9(2) of the Defamation Act 2005 (VIC) means that large corporations are generally unable to commence proceedings even if the facts mean that all the elements of defamation are present. Quite unfair, but it is what it is! For example, imagine if the facts were switched around in Bauer case. Imagine again, if Rebel Wilson made “defamatory” comments about Bauer Media instead.

The result? Bauer Media would not be able to commence defamation proceedings against Rebel Wilson.

So, how can Corporations get around this? Injurious Falsehood

Because large corporations are unlikely to bring claim relating to defamation law, another alternative is available – Injurious falsehood. Injurious falsehood is a claim that corporations may claim if actual damage to the plaintiff has occurred, and publication of the false statement was maliciously made.[8]

There are similarities between Injurious Falsehood and Defamation. Material must be published and the entity’s reputation damaged.  This avenue seemingly allows companies to get around the exclusion caused by section 9 of the Defamation Act 2005 (VIC).  There is no bar to large corporations making a claim under injurious falsehood.

Limitation of Injurious Falsehood

Defamation and Injurious falsehood are not the same though. Injurious falsehood also has its limitations. As Chief Justice, Gleeson CJ in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 stated:

“… Defamation protects reputation, and it does so in a manner that involves a balancing of various considerations including the right of free speech.” [9]

Whereas,

“…Injurious falsehood protects against provable economic loss resulting from false and malicious statements.” [10]

Defamation and Injurious Falsehood have two different objectives as discussed by Gleeson CJ. To successfully claim Injurious Falsehood, four elements must be made out.[11] The elements of injurious falsehood are:

  1. Falsity;
  2. Publication of the false statement to a third party;
  3. Malice; and
  4. Actual damage.[12]

A striking difference between defamation and injurious falsehood is malice. In injurious falsehood, malice must be established to be successful. Whereas in defamation, malice is not necessary for a claim to be made.

So, what exactly is malice?

In Australian Media Law, Butler describes “Malice” as:

Where there is a purpose or motive that is foreign to the occasion and which actuates the making of the statement, there is said to be “express malice” or simply “malice.” [13]

Put simply, if you publish a statement, but the actual purpose was to injure or hurt the person, this would mean that the statement could be considered malice.

Our Thoughts

If you are a corporation, always ensure to determine whether a claim can be brought. If not, then consider whether there are other alternative routes that can be taken. Damages can be tricky, but with the recent rulings, it provides greater clarity and certainty to the damages and remedies available. Contact us for more information. 

Important disclaimer: The material contained in this publication is of a general nature only and it is not, nor is intended to be, legal advice. This publication is based on the law as it was prior to the date of your reading of it. If you wish to take any action based on the content of this publication, we recommend that you seek professional legal advice.

[1] Wilson v Bauer Media Pty Ltd [2017] VSC 521.

[2] Wilson v Bauer Media Pty Ltd [2017] VSC 521 [37].

[3] Wilson v Bauer Media Pty Ltd [2017] VSC 521 [59].

[4] Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69.

[5] Defamation Act 2005 (Vic) s 9.

[6] Steven Rares, ‘Defamation and the Uniform Code’ (paper delivered at the Media Law Conference, Marriot Hotel Sydney, 26 October 2006).

[7] Defamation Act 2005 (VIC), s 9(2).

[8] Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10 [8].

[9] Ballina Shire Council v Ringland (1994) 33 NSWLR 680.

[10] Ballina Shire Council v Ringland (1994) 33 NSWLR 680.

[11] John Corker and Jessica Morath ‘When the Boot is on the Other Leg’ (2003) 22(1) Communications Law Bulletin 10.

[12] Mahon v Mach 1 Financial Services Pty Ltd (No 2) [2013] NSWSC 10 [8].

[13] Des Butler, Australian Media Law (Thomson Reuters, 5th edition, 2015) 101.

Get In Touch