Defamation law for bloggers

Last Friday I went to three hours of training on defamation. I actually found it really quite fascinating, largely because I was quietly applying much of what was said to my blog and not to my job (in which I am largely covered by some of the defences against defamation). There were a number of aspects of defamation I was not aware of, which are potentially of concern to bloggers. For example, did you know that if you post a book review, which causes an ordinary and reasonable person to think less of the author, you could be liable for defamation? Or that if someone posts a defamatory comment on your blog you, as the publisher, could be liable for their comment? The good news is that because defamation is a tort, that is a civil wrong, the plaintiff (ie the person defamed) recovers damages (unlike breaching restrictions on publications, which is a statutory prohibition which can have quasi-criminal penalties eg imprisonment), so someone is unlikely to sue an obscure little blog somewhere if there is no very great capacity for recovering damages.

However, it has happened and could happen and I thought much of the material was worth thinking through because avoiding the possibility of defaming a person is little more than an exercise of integrity, godliness and Christian charity. So I thought I would post some of what I learnt that day, as it relates to blogging. The presenter of this information was Graham Hryce, who is Special Counsel from Banki Haddock Fiora and very highly qualified in this area. My disclaimer is that I don’t guarantee that this is an entirely accurate report of his seminar. I am not a lawyer and some of the nuances of the law were perhaps lost on me, so don’t make this blog post your authority :), but you can read more here.

What do we mean by defamatory material? A jury of four, in NSW, will need to be convinced that the material is defamatory. The test is whether it causes an ordinary and reasonable reader to think less of the person to whom it refers. Whether the author or plaintiff think it is defamatory is irrelevant (but a plaintiff can certainly argue hurt to reputation or even hurt to feelings). An ordinary or reasonable reader is a right-minded member of society, of average intelligence, not prejudiced or a lover of scandal, capable of loose thinking (if anyone has been observing the evolution of this sentence I have gone back to "loose thinking", because weird as it sounds for a right-minded person to be capable of "loose thinking" that is the correct phrase) and reading between the lines (or something like that anyway!).

The plaintiff has to prove identification, but that can include a title or position, reference to a group etc (ie the plaintiff doesn’t have to be named). The test is objective and reasonableness is the key, with the intention of the publisher being irrelevant (ie you can defame someone without intending to and you can also defame someone without naming them or knowing that they exist). If you are going to refer to people it is actually better to be specific, eg if you say “a real-estate agent in Newtown” and there are 12 real-estate agents in Newtown, the other 11 you weren’t referring to could sue for defamation – so you are better to name the person to whom you refer if you give them any identifiers at all.

There are four primary defences in defamation cases:

- Truth/Justification

- Honest opinion (formerly fair comment)

- Qualified privilege

- Fair and accurate report

Truth

Since 2006 truth alone is now a defence, which is why we see so much salacious private material being aired. However, there are now moves towards a tort for “invasion of privacy” because the “public interest” requirement that existed before 2006 has been done away with. So don’t be too comfortable thinking you can blog anything at all just because it’s true. It’s actually very difficult to make out a truth case and very few have been won. Pleas of truth have to relate to meanings that arise, so you can defame someone in a way you didn’t intend.

Honest opinion/fair comment

This one is perhaps most relevant to blogging. Fair comment/honest opinion protects comment but not allegations of fact. The comment has to relate to a matter of public interest. The facts must be duly stated or referred to in the matter for comment and the opinion has to be honestly held. This defence is difficult to make out. The best cases are descriptions of books, plays and restaurants. Provided you have stated the “content” truly (the play or the menu) there is some leeway for comment, but you have to state the facts truly eg if you describe a meal you had a restaurant your description has to be accurate before you “comment” – get any of the “facts” wrong and you won’t have a case. The practical difficulty of this defence is that theoretically it affords wide protection but rarely succeeds. It has to be a very carefully constructed article to have all the facts correct.

The other thing to note here is that publishers are liable for repeating defamatory material. Just because someone else said it first, doesn’t mean it’s fine for you to reproduce it. As Lord Denning once said “Hearsay statement is the same as direct statement because the law does not love tale-bearers”.

Fair and accurate report

This defence protects material that is an account of court proceedings or other tribunals. In this case the accurate report doesn’t have to be fair to the plaintiff. However there is often disagreement over what is fair and accurate.

Qualified privilege

This is a statutory qualified privilege that protects material in circumstances in which the publisher has acted reasonably in publishing the matter complained of. But the courts have defined “reasonableness” in an onerous manner for the defendants ie the plaintiff has been given an opportunity for comment and the comment has been published eg asking for a response. You will notice that newspaper reports often do this (and often report that "so and so declined to comment" - that is ensuring that they can claim qualified privilege).

So, finally, some problem areas and ways to minimise risk:

* Take care to ensure that the facts are truly stated – this provides a great deal of protection (and is a matter of integrity at any rate!).

* Distinguish allegations of fact from opinion eg in book reviews make it very clear what material is content from the book, and what material is your comment on it. Further, do not destroy an otherwise good review with a heading that is biased or a statement of fact eg, without actually being aware I chose a safe heading for my review of Captivating in “Captivating: My thoughts”. If I had titled it “Captivating is not worth reading” I would have condemned my entire review to defamation.

* Beware of material that contains generalisations – it is much better to be specific.

* Be wary of sources from people who have an axe to grind or particular biases.

* Don’t assume that previously published material is reliable or accurate. People often get into trouble reporting material that they don’t understand.

* Avoid imputing motives to people – you should never do this!

So, that's all and hopefully these principles provide a guide in the direction of responsible blogging.