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Generally speaking, if you understand the principles underlying the law of defamation and behave sensibly, you should avoid being sued. But it is essential that you have a broad understanding of the law and that you are careful, because defending an action for defamation can be extremely costly to the union.

Journalists are usually familiar with the law of defamation and are careful not to publish defamatory statements. But you cannot rely on this. You must take responsibility for anything you say or write.

Defamation covers two kinds of statements: a defamatory statement that is written or broadcast is called a libel, while a similar statement which is spoken is called slander.

What is defamatory?

The job of the courts in this area is to strike a balance between freedom of speech and protection of individuals from unjustified and damaging attack. So fear of the libel laws should not stop you speaking out on behalf of your union, but it should make you careful to restrict your comments to that which can be justified using some simple common sense criteria.

There have been various attempts to define defamation, but probably the best is that a defamatory statement 'tends to lower the reputation in the eyes of right-minded persons.' This is of course open to interpretation, and that is why there are long-running court cases involving alleged defamation.

A judge will usually advise the jury that a person has been defamed if the words used:

  • expose him/her to hatred, ridicule or contempt
  • cause him,/her to be shunned or avoided
  • lower him/her in the estimation of right-thinking members of society generally
  • disparage him/her in his/her office, profession or trade, eg impute some quality which would be detrimental, or the absence of some quality which is essential to the successful carrying on of his/her office, trade or profession, such as a lack of ability, incompetence, or dishonest or fraudulent conduct.

The plaintiff in a libel case is the person who has allegedly been defamed. They must prove:

  1. That the statement is defamatory using the criteria above
  2. that the statement can be reasonably understood to refer to them (referring to a person obliquely rather than naming them is no safeguard) .
  3. That the statement has been published to a third person -- a press release or statement on the radio obviously fall into this category.
  4. The plaintiff has to prove that the statement is defamatory but does not have to prove it is false. The law presumes this in his/her favour.

Defences against a claim for defamation

A case for defamation will fail if the originator can invoke one of the following defences:

  • Justification - that the statement made is true
  • Fair comment - that the statement made is fair comment made in good faith without malice.
  • Privilege - parliamentary procedures and, within certain qualifications, the reporting of court proceedings, are deemed to be areas where complete freedom of speech exists. The rules of defamation do not apply: it does not matter if a statement is true or false, or is spoken maliciously, as long as the reporting of them is fair and accurate. This protection is called absolute privilege.

Similar protection applies to various public bodies including councils, governing bodies and public meetings, but there are some restrictions: any report of the proceedings must be contemporaneous: ie it must be published as soon as possible after the event and cannot necessarily be republished at a later date with the same protection. This is called qualified privilege.

A couple of points to remember -- a defamatory statement remains defamatory even if you make it clear that you are only repeating what someone else has already said. Contrary to popular misconception, insertion of the word 'alleged' makes no difference. Similarly, if you find yourself having to make an apology, be careful not to repeat the original defamation while doing so.

If you are accused of defamation

If you do find yourself accused of making a defamatory statement, act quickly to seek advice. If you think you may be in the wrong, apologise clearly and genuinely as soon as possible.

An apology and retraction may be all that is required to put matters right. If you do end up in court, evidence that you acted speedily to apologise and retract your statement may be taken into account when judgment is made.

Last updated: 30 January 2007