What is defamation?
When making statements about an environmental issue or during an environmental campaign, it is important to understand what defamation is, in order to reduce the risk of legal action being brought against you for something that you have written or said about someone else which affects their reputation. Individuals, incorporated associations (including members who contributed to the publication) and companies can be sued for defamation.
Defamation is a type of legal action that can be brought if someone publishes a statement about a person that is defamatory. This means a statement which:
- tends to lower the person’s reputation in the opinion of ordinary members of the community; or
- leads people to ridicule, avoid or despise the person; or
- injures the person’s reputation in business, trade or profession.[1]
Individuals and small companies or not-for-profit groups with less than 10 employees can bring legal action for defamation. However, large corporations, and local and Northern Territory government departments cannot bring legal action for defamation, unless an individual within that organisation is identifiable in the defamatory statement.
Legal action for defamation can be civil or criminal.
In the Northern Territory, civil claims for all defamatory statements (written or spoken)[2] can be brought under the Northern Territory Defamation Act 2006 or the common law.
For someone to be able to sue for defamation, the statement must:[3]
- Have been published[4] (meaning communicated) to at least one person (other than the victim) – this can be orally or in writing or through signs, gestures or images. For example, defamatory remarks could be made in emails, newsletters, articles or websites.
- Identify the person (the victim) – the person must be named, or if not named, be capable of being identified. A person will be considered to have been identified if a sensible reader or listener would be able to identify the person or members of the group.
- Be defamatory – this means a statement that lowers or harms a person’s reputation, or leads others to shun or avoid them.
The usual remedies available to a person who has been a victim of a defamatory statement under civil law are damages and in some cases, injunction.
Criminal prosecutions for defamation may be brought by the Crown Law Officer under the Northern Territory Criminal Code Act. If a person is found guilty of criminal defamation, there is a maximum criminal penalty of 3 years imprisonment.
Defences under the Northern Territory Defamation Act 2006
Under the Northern Territory Defamation Act 2006, there are a number of defences to publishing statements that are alleged to be defamatory.
These are:
- Justification – this is a defence if the defendant proves that the defamatory statements are substantially true;
- Contextual truth – this is a defence if the defendant proves that the defamatory statement was contained within one or more other statements which were substantially true, and as a result of the truth of the contextual statements, the victim’s reputation was not further harmed by the defamatory statements;
- Absolute privilege – it is a defence if the defendant proves that the statement was made in the course of proceedings of a parliamentary body or Court or Tribunal;
- Public documents – it is a defence if the defendant proves that the statement was contained in a public document (or a fair copy of a public document) or was a fair summary or extract from a public document. Public document means:
– any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law;
– any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings;
– any report or other document that under the law of any country which is authorised to be published or is required to be presented or submitted to, tabled in, or laid before, a parliamentary body;
– any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public;
– any record or other document open to inspection by the public that is kept by a State, Territory or the Commonwealth, or by a statutory authority any other document issued, kept or published by person, body or organisation of another State, Territory or Commonwealth that is treated as a public document in that jurisdiction. - Report of proceedings of public concern –this is a defence if a defendant proves that the defamatory statement was, or was contained in a fair report of proceedings of public concern. Proceedings of public concern include proceedings of a parliamentary body, international organisations and conferences, international and domestic courts and tribunals and Ombudsman’s reports.
- Qualified privilege for provision of information – it is a defence if the defendant can prove that the recipient had an interest or apparent interest in having information on the subject; that the defamatory statement was published in the course of providing that information; and that the conduct of the defendant was reasonable in the circumstances. The court can consider what is reasonable in the circumstances by taking into account a number of factors. For example, the extent to which the defamatory statement was published in the public interest; the seriousness of the defamatory statement; the extent to which the publication distinguishes between suspicions, allegations and proven facts or whether the matter relates to the performance of public functions.
- Honest opinion – it is a defence if the statement was an expression of the defendant’s honest opinion rather than a statement of fact. The opinion must relate to a matter of public interest and be based on proper material.
- Innocent dissemination – it is a defence if the defendant distributed the defamatory statement and can prove that he or she neither knew, nor ought reasonably to have known, that the matter was defamatory; and that his or her lack of knowledge was not caused by his negligence.
- Triviality – it is a defence to show that the circumstances of publication were such that the plaintiff or victim was unlikely to sustain any harm.
If you are concerned about the risk of making a statement that might be defamatory or you want to rely on one of the defences under the Defamation Act 2006, you should always seek independent legal advice before a statement is published.
What to do if you are threatened with legal action
If you are threatened or served with legal action for defamation, you should seek immediate independent legal advice.
For legal actions brought under the Defamation Act 2006, there is a procedure for publishers to make offers to make amends with victims of defamation. This procedure can sometimes be used to resolve disputes without litigation. There are strict time limits which must be complied with under the procedure and so it is important to seek legal advice promptly.
If you have an environmental issue, the Environmental Defenders Office is a community legal centre specialising in public interest environmental law, which offers free legal advice on environmental law issues.
References
[1] This is a common law test established by the courts.
[2] Legal actions for libel and slander remain abolished by s6(1) of the Defamation Act 2006.
[3] Note that the Northern Territory Defamation Act 2006 does not define the elements of a defamation action and so this is defined by reference to the common law test developed by the courts.
[4] Note that the Northern Territory Defamation Act 2006 refers to “publishing” and “publisher.”
