Senior Partner - Kennedys
Defamation, Privacy and Data Protection
Contributor: Patrick George (Senior Partner, Kennedys)
The cause of action for defamation is constituted by the publication of defamatory matter about a person to someone other than that person. The Act abolishes the distinction between libel and slander and the action for defamation may be brought without proof of special damage.
There are three traditional elements to the cause of action that the plaintiff must establish, namely publication, identification and defamatory meaning. A fourth element has been added recently that the plaintiff must also establish serious harm to reputation.
The Act expressly extinguishes the cause of action for most corporations. Only non-public and ‘not for profit’ corporations or corporations which employ fewer than 10 persons can sue.
The Act also extinguishes the cause of action of or against deceased persons (except in Tasmania).
Publication is the foundation of the cause of action for defamation. Publication consists of the communication of matter defamatory about the plaintiff to some person other than the plaintiff.
The cause of action is located at the place where the damage to reputation occurs. Publication involves the comprehension of the matter by a third party. That is when and where damage to reputation occurs. It is the location where recipients download material from the internet.
Identification of the plaintiff is an essential part of the cause of action. The plaintiff must prove that the defendant published the defamatory matter ‘of and concerning’ the plaintiff or ‘about’ the plaintiff.
The third essential element of the cause of action for defamation is that the published matter should convey a defamatory meaning. At common law, words are defamatory if they convey a meaning or an imputation (asserting or attributing an act or condition to a person) which would be likely to cause ordinary reasonable people to think less of the person about whom the words are published.
The Act does not prescribe how the matter should be interpreted or define what is defamatory, leaving those issues to be determined in accordance with the common law.
The test of what is defamatory is an objective or reasonable standard consistent with the test of whether it has the tendency ‘to lower the plaintiff in the estimation of right thinking members of society generally’.
The fourth element of the cause of action for defamation, introduced under the Act, is that the defamatory publication has caused or is likely to cause serious harm to the reputation of the plaintiff.
The Act provides for an early resolution procedure by way of an offer to make amends. The publisher may make an offer to make amends to an aggrieved person after receipt of notice of the alleged defamatory imputations.
It is mandatory for the plaintiff to send a ‘concerns notice’ to the publisher before commencing proceedings, unless granted leave by the court to do so.
An offer to make amends in response is deemed to be without prejudice. There are a number of specific requirements to be met in order to make a legitimate offer.
The Act gives a plaintiff or defendant the right to elect a trial before jury unless the court otherwise orders in some jurisdictions. Juries determine the factual issues – whether the defendant has published defamatory matter about the plaintiff and if so, whether any defence raised by the defendant has been established. Juries do not determine the award of damages, which is expressly reserved for the Trial Judge.
The common law provides defences justifying or excusing the publication of defamatory matter. The Act provides a number of statutory defences which are additional to any other defence or exclusion of liability available at common law.
The limitation period for bringing an action is 1 year from the date of publication of defamatory matter. The court may extend that period for up to 3 years from that date, if the court is satisfied that it is just and reasonable to do so.
At common law, it is a defence that the imputation complained of is true in substance and in fact. It has long been held that there is no wrong done by publishing the truth about the plaintiff. The presumption is that, by telling the truth about the plaintiff, his or her reputation is not lowered beyond its proper level, but is merely brought down to it. A truthful statement defines reputation rather than damages it.
The Act provides a defence of justification to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter complained of are substantially true.
There is an alternative statutory defence of contextual truth which provides a defence where the matter complained of conveys a number of defamatory meanings but only one or some of which are the subject of the plaintiff’s complaint in the proceedings. Where there are other imputations of such significance contained in the publication that those about which the plaintiff complains do not further harm his or her reputation, then because of the substantial truth of the contextual imputations, the plaintiff’s cause of action will fail.
The availability of the common law defences of privilege is expanded under the Act. A defence of absolute privilege is provided which covers publications made to or by Parliamentary Bodies, Courts or Tribunals established by law and publications in the course of proceedings within such bodies. There is a defence for the publication of public documents and fair report and a defence of fair report of proceedings of public concern.
Most importantly, in addition to the common law defence, there is a statutory defence of qualified privilege. The defence of qualified privilege at common law is directed to the occasion or circumstances of the publication. The defendant must generally establish a legitimate duty and interest to publish the matter.
Prior to the introduction of the Act, the High Court of Australia had extended the common law defence of qualified privilege under the Lange defence to statements made ‘in the course of discussion of government and political matter’, subject to malice and subject to the publisher acting reasonably.
In doing so, the High Court upheld the implied guarantee of freedom of communication under the Constitution which protects communications made to the public on a government or political matter.
There is also a statutory defence of qualified privilege for the provision of certain information. The defendant must establish that the matter was published to a recipient with an interest (or an interest reasonably apparent to the defendant) in having information on some subject, that the matter was published in the course of giving the recipient information on that subject and ‘the conduct of the defendant in publishing that matter is reasonable in the circumstances’.
Where the matter published concerns an issue of public interest, and the defendant reasonably believes that the publication of the matter is in the public interest, there is a separate statutory defence of qualified privilege. The court may take into account a number of specific considerations provided in the Act but is not limited by those considerations.
There is a statutory defence for the expression of opinion relating to a matter of public interest and based on ‘proper material’ in addition to the common law defence of fair comment but this defence is broader. It may be available even where the defendant is unable to establish that all of the material on which the comment was based is proper material, provided that the opinion might reasonably be based on so much of the material that is proper material.
The defence requires that the alleged comment be sufficiently linked to facts being commented on by reason of those facts being stated (in specific or general terms) in the publication containing the comment, or being referred to in it, or being accessible from a reference, link or other access point or otherwise apparent from the context in which the matter is published, or being notorious. This enables the readers to judge for themselves whether the comment based on those facts is fair.
The statutory defence of honest opinion may be defeated if it can be shown that the opinion was not honestly held at the time the defamatory matter was published.
There is a specific statutory defence of innocent dissemination where the defendant can prove that the defendant published the matter as a subordinate distributor, that the defendant neither knew nor ought reasonably to have known that the matter was defamatory and that the defendant’s lack of knowledge was not due to any negligence on the part of the defendant. This defence is specifically under consideration for reform in the context of digital platforms and the internet.
At common law, damages are awarded to compensate the plaintiff for the harm done by the effect of the publication of the defamatory matter on the plaintiff and on the plaintiff’s reputation.
Damages will be assessed by the Trial Judge alone. The amount of damages awarded must reflect an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
The amount of damages for non-economic loss is capped under the Act at the sum of $432,500 as at 1 July 2021, subject to adjustment by the change in average weekly earnings year to year. The maximum amount of damages is to be awarded only in a most serious case.
The court must award any amount for aggravated damages separately from an award of damages for non- economic loss but may award a sum exceeding the capped amount if it is satisfied that the circumstances of the publication are such as to warrant an award of aggravated damages.
The court may not award exemplary or punitive damages.
There are a number of factors that are expressly admissible on the question of mitigation of damages such as the publication of an apology or correction, the plaintiff has already recovered damages, agreed to receive compensation or has brought other proceedings in relation to publication of matter having the same meaning or effect as the defamatory matter in the proceedings.
The publication of an apology is not an admission of liability but can be used in mitigation of damage.
There is specific provision that the court may take into account the conduct of the parties in awarding costs in defamation proceedings.
The common law in Australia does not clearly recognise a legal right to protection from invasion of privacy. In a number of instances however protection may be provided incidentally by other laws which protect rights such as property, personal security and confidential information.
There have been some judgments (in Queensland and Victoria) which have held that a cause of action for invasion of privacy is part of the common law of Australia.
In the absence of a clearly established common law right, there has been agitation to introduce a statutory right for a deliberate and serious invasion of privacy in order to clarify the law and ensure uniformity throughout Australia.
The Australian Law Reform Commission has recommended a statutory cause of action be legislated. A claimant would be required to show:
(a) Misuse of private information, where there is a reasonable expectation of privacy in all of the circumstances; or
(b) Intrusion upon seclusion.
In determining whether an individual’s privacy has been invaded, the Court would be required to be satisfied that the public interest in maintaining the claimant’s privacy outweighed other matters of public interest (such as the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).
The ALRC recommended that the cause of action may only be brought by natural persons (not companies), be actionable without proof of damage and be restricted to intentional or reckless acts on the part of the defendant.
The ALRC proposals for reform remain under consideration.
The Privacy Act 1988 (Cth) (the “Privacy Act”) governs the handling and storage of personal information by Australian companies. “Personal information” means information or an opinion, whether true or not, and whether recorded in a material form or not, about an identified individual, or an individual who is reasonably identifiable.
Australian Privacy Principle 11.2 provides that organisations must take reasonable steps to ensure that personal information is not kept longer than is necessary for any purpose which is permitted under the Privacy Act. Personal information may be deleted (if in electronic form) or destroyed (if in physical form), but it is also acceptable to de-identify the data so that it is no longer within the definition of “personal information” under the Privacy Act (in other words, so that the individual is no longer reasonably identifiable from the information). Care needs to be taken with any deletion, destruction or de-identification to ensure that any reconstruction or re-identification is not possible.
It should be noted that this is a “reasonable steps” obligation; rather than an absolute obligation to delete every item of personal information as soon as it is no longer needed, it allows businesses some flexibility to manage the deletion or destruction of personal information in a practicable way.
The Privacy Act does not apply to small businesses or employee records.
There are also legal and commercial considerations which businesses need to take into account when determining how long to retain data, in addition to the Privacy Act.
The business will need to retain records for commercial purposes. A business will generally need to retain records of its commercial relationships and transactions for as long as those relationships and transactions continue.
Certain laws require businesses to retain specified records for a specified period of time. For example, the Corporations Act 2001 (Cth) requires that certain financial records be retained for a minimum of seven years.
It is often also desirable for a business to retain records in case a dispute arises in relation to their subject matter, so that the business can produce those records to assert a claim or in its defence.
All of the above requirements suggest that businesses should retain data for as long as possible.
Contributor: Patrick George (Senior Partner)
Kennedys (Australasia) Partnership
360 Elizabeth Street
Melbourne VIC 3000
The material in this Guide is for general information only and does not constitute legal advice.
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