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The Defamation Act 2005 came into force in WA on 1 January 2006.
What is defamation?
If you have defamed a person, you may be held liable for damages (money).
You have defamed a person if you make a statement which:
• tends to lower the person’s reputation in the eyes of ordinary members of the community;
• leads people to ridicule, avoid or despise the person, or
• injures the person’s reputation in business, trade or profession.
The fact that you have defamed somebody does not mean that you will be held liable in court. There may be defences available to you.
A defamatory statement can be written or verbal. To be defamatory, the material must be ‘published’ or made known to someone other than the person defamed. This can include saying something in front of other people, publishing an article in a newsletter, or writing something on a website or in an email or any other type of online communication.
Who can be defamed?
Only living (as opposed to dead) persons can be defamed.
Importantly, most large companies are no longer able to sue for defamation in WA. Only not-for-profit companies or companies with less than ten employees (provided they are not public bodies) can be defamed, where their trading or business reputation has been lowered.
Who is liable?
Each person who participates in the publication of the defamatory statement, not just the author, incurs liability. This can include the broadcaster, the journalist who wrote the material, the producer of a program or editor of a newspaper, and any other person who contributed to the publication if their contribution can be identified.
Example 1: A person who hands out a defamatory letter or forwards on a defamation email can be sued, in addition to the person who wrote it.
Example 2: Employees of a small company who authorise the issuing of a defamatory media release can be sued, in addition to the person who wrote the media release.
You can’t be held liable for making a defamatory statement if:
→ You can prove that the statement was true
If a legal action is brought the person sued must prove in court that all defamatory allegations and inferences that can be drawn were substantially true. This can only be done by showing original documents or calling witnesses who themselves saw or heard things directly. It can be very difficult to prove that a statement is true and this is not always a good defence to rely on. There is no defence of “honest mistake”.
→ The statement was an honest opinion on a matter of public (rather than private) interest
You can offer your opinion on a matter of public interest, even if it lowers a person’s reputation, as long as it is an “honest opinion” based on facts you state and can prove to be true. Matters are of “public interest” only if the person whom the statement is about inherently invites public criticism or discussion (e.g. politicians).
→ The statement is “privileged”
The most commonly used “privilege” defence is “qualified privilege”. This applies where information is given to a person who has an interest in having information on a subject and the maker of the statement acts reasonably in giving that information. The maker of the statement must not be motivated by malice. The “qualified privilege” defence will apply, for example, to the reporting of a suspected crime to the police.
There are a number of factors the court can take into account when deciding whether a person acted reasonably, for example:
• the extent to which the matter published is of public interest
• the seriousness of any defamatory imputation carried by the matter published
• the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
• the sources of the information in the matter published and the integrity of those sources.
The other “privilege” defence is “absolute privilege”. Where a matter is published in the course of parliamentary proceedings, or in certain court proceedings, the maker is immune from legal proceedings. However, a person reporting a defamatory statement made by a member of Parliament or witness in court does not have the protection of the maker’s absolute privilege. A person reporting a statement made in Parliament or court may have the protection of qualified privilege if they make a fair and accurate report of the proceedings.
There is no general defence of “speaking out in the public interest”.
There are other defences under the Defamation Act or common law that may apply in different situations. Seek legal advice if you concerned about what defences may be available to you.
Minimising the risk of getting sued for defamation
• be careful not to unintentionally identify a person if what you are saying could lower their reputation, and avoid sweeping statements and generalizations
• avoid criticising the character of any person you do identify – concentrate on the issue, rather than the possible motives of the people involved
• carefully check that your statements are true and can be backed up
• only give your opinion when it is an “honest opinion” on facts you have stated, and
• if in doubt, check with a lawyer first.
Usually a person who is going to sue for defamation will first give the person who made the statement a chance to apologise. This can be done through a “concerns notice” – a written notice to the publisher that the person has been defamed and would like the publisher to make amends.
Often, a request will be made that an apology using a specified form of words be published in a certain place, such as a local newspaper.
If you are given the chance to apologise, and wish to take it, you can make an “offer of amends” including an apology and an offer of damages if appropriate. Otherwise, the person who believes they have been defamed may proceed with their legal action. If the offer of amends is accepted and the terms are carried out, the person loses their right to sue.
Before you spend countless thousands of dollars pursuing this action there is a procedure you can follow Pursuant to Part 3 of the Defamation action Act 2005.
You would issue what is referred to as a “Concerns Notice” (Section 14(2)(a) of the Act) outlining the “imputations of Concern” that you have (Section 14(2)(b) of the Act) and demand that they make to you an “offer to Make Amends” (section 15 of the Act) which would include an apology, written or broadcasted in the same way the accusations were made, and also for them to offer to a non economic loss payment.
This path may avoid litigation where costs and outcome are unknown.
Going to court
Defamation cases are heard in the Supreme Court of Western Australia. If a defamation action is successful, the Court can order that the person or persons who made the statement in question pay damages to compensate for injury to reputation and any financial loss caused by the defamatory statement (such as loss of business). In addition, the court will usually order that the unsuccessful party pay the successful party’s legal costs.
Damages for Defamation
The Act also introduces a number of features that affect the way in which damages for defamation are awarded and assessed. These features are gathered under the proviso in section 34, outlining that the Court is to ensure that there is an ‘appropriate and rational relationship’ between the harm sustained and the damages awarded. Several of the other features outlined in subsequent sections are that:
- Damages for non-economic loss are capped at a maximum of $432,500 from 2021 unless an award of aggravated damages is warranted.
- The defendant’s state of mind is not relevant to the award of damages made, unless it has a bearing on the harm suffered by the plaintiff.
- Exemplary or punitive damages cannot be awarded.
Mitigation of damages under Section 38
Section 38 outlines a variety of factors that can be taken into account for determining if damages should be migrated. These include:
- The Defendant has made an apology to the Plaintiff;
- The Defendant has published a correction of the defamatory material;
- The Plaintiff has already recovered damaged or agreed to compensation for defamation relating to the ‘same’ material; or
- The Plaintiff has already brought proceedings in relation to the ‘same matter’.
The Defamation Act 2005 (WA), through the operation of s 47, modified the operation of the Western Australian Criminal Code by repealing s 53 of the Code which dealt with the defamation of foreign princes. Given the breadth of the new Act it is not surprising that an outdated provision such as this, with such a limited application, would be repealed.
Section 47 of the Act also operates to repeal Chapter XXXV of the Code and replaces it with section 345 which deals with criminal defamation. This provision makes it a crime punishable by three years imprisonment for a person, without lawful excuse, to publish defamatory matter of another living person knowing the matter to be true or false, and who intended to cause serious harm, without regard, to the victim.
Liability limited by a scheme approved under Professional Standards Legislation.