Legal - Defamation: the devil's in the detail
Queensland Teachers' Journal, Vol 128 , 21 July 2023, page no.26
“A man who falsely accused his neighbour of sexually harassing his wife in a letter he sent to residents will pay tens of thousands of dollars in defamation damages.”
The above introduction appeared recently in a local newspaper and a "ker-ching" sound rang in the minds of teachers throughout Queensland, who routinely face worse abuse than this, and more widely spread. Sadly, this recent ker-ching was almost certainly premature.
What’s the story?
In May 2015, a man who lived in Mansfield with his wife and their daughter wrote a three-page letter accusing a neighbour of the “sexual harassment” of his wife by taking photos. Among other things, the letter writer opined such a person may also take photos of their children. He distributed the letter to all his neighbours. Six years later, in October 2021, the Magistrate awarded the neighbour $30,000 in defamation damages plus interest, and he ordered the letter-writer to pay the claimant’s costs. The letter writer appealed to the Brisbane District Court, where his appeal was dismissed in June 2022. Undeterred, he appealed to the Supreme Court, and the Court of Appeal again dismissed his appeal, with costs still to be determined.
So, still “ker-ching” then?
It took six years to get the first decision and it is now 8 years since the saga kicked off. If the neighbour was personally funding his lawyers, the costs must now be in the seven-figure territory, not to mention the letter writer’s costs. So, you will have experienced almost unimaginable financial stress, accompanied by public humiliation, for eight years. Even if you win, you get $30,000 in damages and (maybe) some portion back of the hundreds of thousands of dollars spent on the litigation.
The law has changed
The uniform defamation legislation was adopted by each state and territory in January 2006. In July 2021, a suite of reforms was introduced to update the legislation, including a serious harm threshold for defamation claims, to be determined by a court as soon as practicable before the trial. So far this has been adopted by New South Wales, Victoria, Queensland, South Australia, Tasmania, and the Australian Capital Territory. The provision, found at s 10A of the Defamation Acts in Queensland, was introduced to combat the concern that defamation law was increasingly used for “trivial, spurious and vexatious backyard claims” and because the costs and stress of defending a defamation claim can be prohibitive for private individuals.
The provision essentially provides that:
- “serious harm” is an element to a claim of defamation
- the “serious harm” element is established by proving that the defamatory material complained of caused, or is likely to cause, serious harm to the reputation of the plaintiff/complainant
- the serious harm element is one to be determined by a court and not a jury
- the serious harm element can be determined at any time in the course of the proceedings (not only at trial) unless a court is satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).
This means there is now a hurdle for anyone seeking to launch a defamation action - the need to show “serious harm”. In February 2022, the New South Wales Supreme Court in Newman v Whittington [2022] NSWSC 249 (https://www.caselaw.nsw.gov.au/decision/17f3d3d4957fb557929853f2) gave judicial consideration to the “serious harm” provisions in Australia for the first time.
In considering how the serious harm element operates in Australia, Justice Sackar confirmed that, in Australia:
- the serious harm threshold would normally be determined before trial, unless special circumstances arose
- the onus is on a plaintiff to establish serious harm is a necessary element to a defamation claim
- to establish the element, consideration must be had to the facts of each matter and the impact of the publication, rather than to harm that might be “inferred” from use of the words used within the publication and the generally understood meanings of those words
- the s10A serious harm provisions abolished the common law presumption that a plaintiff has suffered damage upon the publication of defamatory material.
He indicated that to establish serious harm, facts evidencing actual harm caused, or likely to be caused, should be presented and considered by the Court as opposed to an assessment of the “likelihood of harm”.
Justice Sackar’s decision made clear that it is a plaintiff who bears the onus of proving that actual, rather than inferred, serious harm to his or her reputation has been, or is likely to be, caused by the defamation. Serious harm is not defined in the act and it is impossible to say now how the doctrine will be applied over time, but one thing is clear - hurt feelings, anxiety about what people are saying about you, a desire for “payback”, or even just a general sense of indignation will not constitute serious harm.
If you are defamed online, ask yourself if what is being posted genuinely harms your reputation to the extent that it is causing you serious harm. Is the person defaming you credible? Are people likely to believe them? In basic terms, is it worth it? Sometimes, the most useful response is to try to get the material taken down. Teachers can apply to the host of the site themselves or seek assistance from the Cybersafety and Reputation Management team of the Department of Education (DoE) (phone 3034 5035 or email cybersafety@qed.qld.gov.au). If that fails, contact the Union.