Defamation law

[K]

<Split from "ACB Board and Tassie Liberals" thread>

About defamation laws...


"In Victoria, the distinction between libel and slander was abolished in 2006 when Australia’s States and Territories adopted uniform defamation legislation. The law relating to defamation is contained in Victoria’s Defamation Act 2005.

Although there are minor variations between States and Territories, the uniform legislation was adopted to ensure the law of defamation did not unreasonably limit freedom of expression, would provide effective and fair remedies for persons whose reputations are defamed, and promote speedy and non-litigious methods for resolving defamation dispute.
...

Generally, defamation in Victoria is the publication of materials that has a negative impact on the reputation of an individual (the ‘aggrieved’), and the statements in the publication are not substantiated by facts.
...

The law of defamation has become important given the amount of content published online via blogs and social media. The Commonwealth Broadcasting Services Act 1992 limits liability for the content host or service provider when the host/provider is unaware of the content. However, if you link to or email defamatory content then you may be held liable as a publisher."


https://www.gotocourt.com.au/civil-law/vic/defamation/


More details:

"Within one year of publication of a defamatory statement, an aggrieved individual may bring a defamation claim against a publisher to recover costs for harm sustained."

"...of a defamatory matter – this may be a blatant lie or an imputation, a false representation. A communication is defamatory if someone has a reputation and that reputation has been damaged by the publication of the lie or imputation.
about, concerning or identifying a person – untrue statements or imputations that do not identify an aggrieved will not create a cause of action for defamation. Likewise, groups of people and most corporations cannot sue for defamation, although there are exceptions if the group or corporation is a non-profit and small."



Questions:

Does the burden of substantiation by facts lie with the publisher or the aggrieved?

Simply using abusive language against someone (which it sounds like Sacked Person 1 was doing to Sacked Person 2 in this thread's case) isn't defamatory, is it? It seems there are harassment laws, though...
[In Vic, "harassment" may be covered just in the Victorian Crimes Act, but "The Commonwealth Criminal Code, set out in the schedule to the Criminal Code Act 1995 (Cth), provides for an offence of ‘using a carriage service to menace, harass or cause offence’ and ‘using a carriage service to make a threat’" (alrc.gov.au).]

[K]

Defences to defamation: [from the source above]

"There are many defences to defamation in Victoria, including:

justification – meaning the published statement is substantially true;
contextual truth – the published statement made imputations that are substantially true so the aggrieved could not have been harmed;
...
honest opinion – the publication was a statement of opinion rather than fact;
..."


Note, though, that

"In Victoria, criminal proceedings for defamation may be initiated if the publisher knew the defamatory statement was false or had no regard its truth/falsity at the time of publication.

The penalty for publication of malicious defamatory content is a fine as the court sees fit, and/or imprisonment for up to 1 year. If the publisher knows the material to be false, the term of imprisonment increases to a maximum of 2 years."

[stui magpie]

Is there a purpose behind posting all this stuff?

[K]

Umm... yes?

[K]

"A defamation action will fail if it can be shown that the allegation complained of is substantially true.

There are practical problems involved in proving the truth of a statement in court. You may, for example, need persuasive and authentic documents to prove this, or have witnesses who can and will give evidence of the truth of your statement."


https://www.edonsw.org.au/hys_avoiding_defamation


And if the only witness is the alleged victim who suddenly is the defendant...?
Hmm...

[K]

"Australia has, notoriously, the most repressive defamation laws in the English-speaking world. There are several enormous differences between them and the US position, derived from the fact that the American people have an enshrined constitutional right to free speech and we don’t.

The biggest difference is how we deal with the “you can’t handle the truth” question. In Australia, the media’s primary line of defence is truth. The burden is on the publisher to prove the truth of what they published, once it has been established that it’s defamatory (which isn’t hard).

By contrast, in the US the burden cuts the other way. To have a case, a defamation plaintiff has to prove that what has been published about them is false. If they are a public official, they also have to prove that the publication was made with malicious intent (meaning knowledge or recklessness as to its falseness)."

(Michael Bradley, http://www.marquelawyers.com.au/assets/how-australia.pdf )

[K]

Britain, a destination for "libel tourism"

JAN. 20, 2008

"But lately, there has been a backlash against the bustling libel capital of the world and its cottage industry of boutique law firms that specialize in "brand reputation" legal work for the wealthy.

This month, lawmakers in New York State introduced protective legislation protecting writers from foreign judgments in countries that do not meet the free-speech standards of the United States. It is titled the "Libel Terrorism Prevention Act."
...

And as countries have passed legislation protecting the free-speech rights of writers and authors, Britain has become a fallback, according to media lawyers in London.
...

Britain is a legal refuge because of defamation standards rooted in common law. They essentially assume that any offending speech is false and the writer or author must prove that it is in fact true to prevail against the charge.

In the United States, with its First Amendment protection for free speech, the situation tilts in the opposite direction: To succeed, libel plaintiffs must prove that the speech is false and published with a reckless disregard for the truth.
...

This month, Rory Lancman ... and Dean Skelos ... stood on the steps of the New York Public Library to announce a proposed bill that would amend state law to give New York courts jurisdiction... Essentially, the proposal would allow New York courts to declare such foreign judgments unenforceable unless the country in which they are made had free speech protections similar to the First Amendment.

British lawyers contend, though, that the law would have little effect on the trend because many of their wealthy clients are more interested in collecting legal judgments labeling allegations false than in reaping big payouts. It is already difficult or almost impossible, they note, to collect foreign judgments in the United States."

https://www.nytimes.com/2008/01/20/technology/20iht-libel21.1.9346664.html

[K]

"WHAT PLAINTIFFS MUST PROVE TO WIN A DEFAMATION LAWSUIT IN THE U.S.

To win a U.S. defamation lawsuit, the plaintiff, at the very least, must prove that the defendant:

Published or otherwise broadcast an unprivileged, false statement of fact about the plaintiff;
Caused material harm to the plaintiff by publishing or broadcasting said false statement of fact;
Acted either negligently or with actual malice;

FREE SPEECH V. DEFAMATION

In the United States, federal defamation law is closely tied to the First Amendment. As a result, federal slander and libel laws are more defendant-friendly in the U.S. than those in common law countries, like the U.K. and Canada. In short, opinion is not considered defamation in the U.S. That being said, false statements of fact that harm the reputation of an individual or business, aren't protected under Constitutional Free Speech provisions.

INTERNET DEFAMATION LAW: SECTION 230 OF THE COMMUNICATIONS DECENCY ACT

The United States also has a unique law governing accountability as it relates to acts of online defamation -- Section 230 of the Communications Decency Act. In short, the statute absolves Internet service providers (hosting companies, websites, developers, etc.) of defamation liability over user comments and content. It's why Facebook, the corporation, is not sued every time an individual Facebook user commits an act of libel on the platform.


AUSTRALIA DEFAMATION LAW

Favors: Neutral
Bottom Line: In 2006, Australia passed a libel reform bill which allows for greater equity in the country's defamation laws. Equity between individual citizens and big business.

CANADA DEFAMATION LAW

Favors: Plaintiff
Bottom Line: Canada's defamation laws are somewhat inline with the United States; however, it's easier for plaintiffs to win defamation lawsuits in Canada than in the United States. Moreover, each province has its own statutes, much like states have their own provisions. The legal concepts of "fair comment" and "honest belief" play a role in Canadian defamation law.

UNITED KINGDOM DEFAMATION LAW

Favors: Plaintiff
Bottom Line: While the UK doesn't have repressive defamation laws, the statutes are very plaintiff-friendly."

http://kellywarnerlaw.com/defamation-around-the-world/

[K]

So the claims by M. Bradley (quoted on the previous page) that "Australia has, notoriously, the most repressive defamation laws in the English-speaking world" don't seem to be justified.

[K]

Criminal Defamation in Australia: Time to Go or Stay?

"While many would agree with the repealing of laws relating to sedition and obscenity, in Australia not all would be convinced the time is right for the abolition of defamatory libel or criminal defamation as it is known in most states of Australia.

In fact, in view of the troubling phenomenon of defamatory slurs on social networking, there is a strong argument for the offence not only remain on the statute books but to be invoked more often especially in seriously malicious cases where defendants are often ‘judgment proof’ in the civil jurisdiction. That is, they either cannot be identified or they are impecunious and incapable of satisfying a judgment for damages, leaving plaintiffs without a remedy.
...

A crime is an offence against the State, as representative of the public, which will vindicate its interests by punishing the offender. A criminal prosecution is not concerned with repairing an injury that may have been done to an individual, but with exacting a penalty in order to protect society as a whole. Tort liability, on the other hand, exists primarily to compensate the victim by compelling the wrongdoer to pay for the damage he has done.
...

Victoria is slightly different. Under s 10 of the Wrongs Act 1958 (Vic) a person who maliciously publishes any defamatory libel knowing it to be false, is liable for criminal defamation. Unlike the position in other Australian jurisdictions the prosecution needs to prove that the accused had knowledge of the falsehood of the matter, but also that the accused had a malicious intent in publishing the alleged defamatory statement.

Criminal defamation is an indictable offence and proceedings may only be instituted with the written consent of the Director of Public Prosecutions in most jurisdictions.
...

Criminal defamatory acts are to be distinguished from most civil defamatory actions where defendants often have a belief that their words are true, but are found to be false or at least come within the ambit of a legal defence, for example, qualified privilege. Criminal defamatory acts are where the defendant knows the matter published is false and intends to cause serious harm to the relevant person."


http://classic.austlii.edu.au/au/journals/MurdochULawRw/2013/1.pdf

[K]

"Critics of criminal defamation point out that there are other remedies both civil and criminal available to those who have been unfairly defamed. For example, breach of confidence which has now been extended to protection for personal secrets, such as domestic confidences passing between a husband and wife during marriage and sexual affairs. Also, unlawful stalking where harassment is an element of the crime.

The Commonwealth Criminal Code Act 1995 contains a number of offences which may be effective means of redress against misuse of telecommunication services to menace, threaten or hoax other persons. Section 474.17 makes it an offence to use telecommunication services to menace, harass or cause offence (punishable by 3 years jail). It does not matter whether the menace or threat is caused by the type of use (such as multiple postings on a website) or by the content of the communication or both, provided reasonable persons would regard the use as being menacing, harassing or offensive in all the circumstances."

ibid.

[K]

"The New Zealand Law Reform Commission in its issues paper on the reform of news media, and new media regulations, recognises the harm that is done by rogue bloggers tweeters and social media posters. In essence, it says it is a bit hard to tell how much harm is being done, but finds plenty of evidence that there is a significant amount.
...

On the other hand, some jurisdictions question whether online defamation is harmful at all. For instance, in the UK, Eady J said in a judgment that bulletin board postings were ‘often uninhibited, casual and ill-thought out; those who participate know this and expect a certain amount of repartee or, give and take’. These remarks were echoed in a Canadian case where a superior court judge granted summary judgment against a plaintiff for an attack made against him on a website.

... The Judge found that the offending words were protected by the defence of fair comment (Honest Opinion in Australia). But another reason for his conclusion was that he described Internet blogging as a form of public conversation:
Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame.

Furthermore, he said in many online environments, readers expect ‘cut and thrust’. They expect a defamatory statement to be parried. He said a ‘simple rejoinder’ could have ‘nipped in the bud’ the risk to the plaintiff’s reputation. In any event this example has more to do with extreme political speech than criminal defamation.

A US judge last year also refused to recognise online attacks as harmful. ... The judge said that blogs ‘are a subspecies of online speech which inherently suggests that statements made there are not likely provable assertions of fact’ . ..."

ibid.

[K]

Referred to above --

The Commonwealth Criminal Code Act 1995:

"474.17 Using a carriage service to menace, harass or cause offence

(1) A person commits an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 3 years.

(2) Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:
(a) an employee of an NRS provider; or
(b) an emergency call person; or
(c) an employee of an emergency service organisation; or
(d) an APS employee in the Department administered by the AFP Minister acting as a National Security Hotline call taker."

http://www7.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cca1995115/sch1.html

[K]

Referred to above --

The Wrongs Act 1958:

"10 Publisher of false defamatory libel
(1) Every person who maliciously publishes any defamatory libel knowing the same to be false shall be liable to imprisonment for a term of not more than two years and to pay such fine as the court awards.
(2) Every person who maliciously publishes any defamatory libel shall be liable to fine or imprisonment or both as the court may award such imprisonment not to exceed the term of one year.
(3) An offence against subsection (1) or (2) is a summary offence."

[K]

Then comes a rather long sentence --

"11 Trial for defamatory libel
(1) On the trial of any charge for a defamatory libel, the accused having pleaded such plea as is hereinafter mentioned, the truth of the matters charged may be inquired into, but shall not amount to a defence unless it was for the public benefit that the said matters charged should be published; and to entitle the accused to give evidence of the truth of such matters charged as a defence to such charge it shall be necessary for the accused in pleading to the said charge to allege the truth of the said matters charged in the same manner as in pleading a justification to an action of defamation, and further to allege that it was for the public benefit that the said matters charged should be published and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published; to which plea the prosecutor shall be at liberty to reply generally denying the whole thereof; and if after such plea the accused is convicted on such charge it shall be competent to the court in pronouncing sentence to consider whether the guilt of the accused is aggravated or mitigated by the said plea or by the evidence given to prove or disprove the same:
Provided always that the truth of the matters charged in the alleged libel complained of by such charge shall in no case be inquired into without such plea of justification:
Provided also that in addition to such plea it shall be competent to the accused to plead a plea of not guilty:
Provided also that nothing in this Act contained shall take away or prejudice any defence under the plea of not guilty which it is now competent to the accused to make under such plea to any charge for defamatory words or libel."


[Yes, that was a single sentence.]