Explainer: Journalists & Defamation

We are living in an era of online publishing, where all people (who are active on social media) create or assist in disseminating content and information in the public sphere. Individuals use social media platforms to express their personal opinions. The thing that sets professional content and media publishers and journalists apart from the everyday twitter user is the consideration of the legal and ethical standing of their work. As such, beginner journalists/media personnel needs to acquire and maintain an adequate understanding of defamation as a legal issue. 

So, what exactly is defamation?

Defamation is the publication of statements that

are false, and
cause injury to someone’s reputation

Defamatory remarks are ones that inspire hatred, contempt or ridicule of the defamed person (or plaintiff).

Any individual, small company (involving ten or fewer people) or non-for-profit organisation can sue for defamation.

As cited in the Defamation Act 2005 (NSW), the publication of these statements can come in the form of;

An article, report or advertisement in a newspaper or magazine (physical/print media)
A program, report, advertisement on television, radio or the internet (digital/electronic media)
A picture, gesture or oral utterance
Any other way that one might communicate something to another person.

To be considered defamatory, the statement/s must

a) be published (spoken, written, disseminated in any way) to a third party, and
b) clearly identify the person whose reputation was harmed

The implied information or, in legal terms, the ‘imputation’ of a statement is just as legally relevant as the published defamatory statement itself.

What defences can be used to fight a defamation suit?

Section 3a of The Defamation Act 2005 (NSW) specifies “that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest.”

In light of this, journalists may defend themselves in defamation cases using two main defences:

Truth and
Public importance

Defences of Truth: 

Truth is the strongest defence.

If the statements you are making are found to be true, you are not damaging the plaintiff’s reputation, but rather placing it at the proper level.

To use this defence, the imputations or statements must be proven to be ‘substantially true’. This is why journalists should be meticulous in making sure the information they publish is reliable and verifiable and ensuring they “report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts.”, as per the MEAA Journalist Code of Ethics.

It is unlikely that someone would sue a journalist for publishing information that is 100% factual, especially if they did so in a way which was respectful and unbiased.

However, remember that the legal ‘onus’ or responsibility of providing proof is on the accused journalist/media organisation to prove that the statements they published were true. This can be difficult in cases where a journalist’s sources have requested anonymity in exchange for information. This is why the MEAA Journalist Code of Ethics also states that journalists should “Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source.”

Under the category of truth also falls the defence of ‘contextual truth’, which applies in circumstances where the publication of defamatory material can

a) be proven to include one or more imputations that ARE substantially true, along with that which is not, and
b) that the plaintiff’s reputation is not harmed by the defamatory statements, because of the imputations which are contextually and substantially true.

Defences of Public Importance:

Journalists reporting on proceedings/debates/documents concerning legal or parliamentary bodies and courts or tribunals can use a defence of absolute privilege. This defence protects the vital role of journalists in regulating authority and their right to criticise the government, as well as the responsibility of informing the public of matters directly concerning them in the Australian democratic system.

This means that journalists are enabled to report of public proceedings or events. However, any report made must be ‘fair’. The defence of a fair report is only valid if the report shows no allusion to the opinion or personal bias of the reporter.

The defence of qualified privilege allows journalists to publish defamatory material “where there is a legal or moral obligation” to do so.

Reviewers, editorial writers, arts, sports and political commentators can fight certain claims of defamation using the defence of honest opinion. This defence was notably used in the case of John Fairfax Publications v Gacic in 2007.

Bear in mind that none of these defences are valid if the plaintiff can prove that the defendant put forth the defamatory content with malice or ill-intent.

Overall, journalists should consider whether or not their work defames someone, and moreover, if it rightfully does so. If you couldn’t clearly defend your work in court, don’t publish it.

How may defamation be punished?

Courts award monetary damages to the plaintiff depending on the severity of the defamation’s impact on their reputation. Last year, Australia’s highest payout was awarded to Rebel Wilson in damages against Brauer media, who painted the actress as a liar and was said to have had a considerable impact on her career. In some cases, where the defamatory statements were made with the intent to cause serious harm to the victim, defamation can be treated as a criminal case and is punishable by a maximum penalty of 3 years imprisonment.

How does all this translate online?

The court proceedings and laws surrounding it are designed to protect the reputation of the individual and balance that with the rights and responsibilities of free speech. Journalists have an obligation to handle and publish information with respect and thoughtfulness. In cases where a story could be perceived as defamatory, journalists need to carefully consider the necessity of the information becoming public and weigh up possible consequences with valid and honourable motives and outcomes which will better society.

Case law allows for laws to adapt to the present-day issues society is faced with. However, in areas that have not been tested in court, responsibilities of journalists and corporations on social media are somewhat unknown.

The interpretation of defamation laws are still being adjusted on a case-to-case basis to include the development of web 2.0 and subsequent social-media-driven journalism. As such, the responsibilities of journalists and media corporations in terms of management of their social media pages aren’t distinct. However, we can learn from the legal decisions that have been made so far regarding the issue. There have been a handful of similar defamation cases in NSW centred around defamatory imputations present in comment sections of the media company’s social media posts. All of which have concluded that media organisations have a responsibility to monitor and mediate the content of their comment sections, reviewing and deleting comments that may be problematic.

For example:

In 2019, Dylan Voller, a former detainee of the Don Dale Detention Centre in the Northern Territory sued News Corp Australia and Nine Entertainment for defamation. He did so under allegations that the news outlets had facilitated readers to spread defamatory information in the comment section of their posts on social media platforms such as Facebook and Twitter. The final ruling found that the media corporations are legally responsible for monitoring the comments left on their posts. Justice Stephen Rothman stated in his final decision that the media organisations “provided the forum for its publication and encourages, for its own commercial purposes, the publication of comments”. This set a precedent that media organisations could be considered publishers of third-party comments and were therefore liable for them.

Mark Pearson mentions that judges are yet to decide whether or not journalists and journalistic organisations face any exclusive liability when readers retweet or share their posts if it is found to be defamatory. He goes on to say that while some would assume that a retweeter takes over liability by re-publishing, this is not necessarily true considering online newsrooms now publish information and “clickbaity” headlines with the specific intention of spreading the story through social media engagement. Because this intention is evident in almost all cases, the journalists or corporation become responsible for the regulation of the story’s spread.