An editor once told me you’re not a real journalist until you get your first lawsuit. That was 20 years ago and although he was (probably) joking, I perversely liked the sentiment. After all, great journalism is all about keeping the bastards honest – and it’s hard to do that without ruffling feathers. The fact that a defamation suit turns your life to hell was a detail that escaped me in my youth.
These days I’m older, possibly wiser, and certainly more wary. After all, out of all the Western countries, Australia is one of the worst when it comes to the ease with which you can be sued for defamation – and that affects all communications professionals, not just journos.
Since I suspect many people would be surprised to find out just how liable their actions can be, here are five key issues to keep in mind:
1) If people leave comments on your site or Facebook page, you can be liable for them
In the US, where the notion of freedom of speech permeates the law, blog owners are not liable for the comments left by others. In Australia, however, that’s not the case. If you publish comments by others on your blog – or even your Facebook or other social media page – then you’re responsible for them.
That’s not to say there aren’t legal defences – most notably, the Honest Opinion defence – but the success rate of using them isn’t great. As such, your option is to either play it safe and delete the comment if it’s defamatory or to take your chances.
2) You may also be liable if you repost, retweet or even like a defamatory post on social media
Almost every day we see something defamatory on our social media news feeds – and most of us don’t realise they’re legal minefields, even though the number of social media lawsuits are rising. If you believe in what’s being said, then I think it’s great for you to support it – but there is a legal risk.
3) When it comes to defamation in Australia, you are guilty until proven innocent
A lifetime of watching US television has made Aussies feel as though the onus is on the person suing (the plaintiff) to prove the defendant’s guilt. When it comes to defamation, however, it is up to you to prove that what you write is true – otherwise, it will be assumed that it’s false. Note that this not only means proving the truth of what you actually said, but also the imputations (ie defamatory meanings) that a reader might gain from the story, such as by reading between the lines.
4) Corporations with 10 or more employees can’t sue you for defamation (unless they’re not-for-profits)
Finally: a bit of good news for writers. I know a lot of journalists – including myself – who were relieved when the Australian laws changed in 2006 so that big corporations couldn’t threaten writers with defamation suits. However, individuals or groups of people that have been identified within the corporation can still sue, as can not-for-profit organisations.
Furthermore, corporations may still be able to sue you for something else – such as injurious falsehood.
5) You can be sued over a simple headline – or puff – or caption – or poster
I was taught a long time ago that even if you wrote a story that contains all the context, explanation and balance to protect yourself from defamation, a defamatory headline can still get you into trouble. From experience, I can say this often happens because the headlines are written (and rewritten) at the last minute.
Online, headlines are often separated from the articles – for example, when they appear by themselves in email newsletters and on homepages – and when this happens, the risks are far greater.
For example, it was the line Treasurer for sale – used in a tweet and on posters – that led to Joe Hockey being awarded $200,000 when Fairfax wrote about Hockey’s involvement with a Liberal Party fundraising group called the North Sydney Forum.
And that’s just the beginning
Media law is so complex that what I’ve written is just the tip of the iceberg. If you want to find out more, then I strongly suggest reading The Journalist’s Guide to Media Law, which is written by Mark Pearson and Mark Polden. It’s easy to read, interesting, localised for Australia while keeping a global perspective, and it’s recent – the 6th edition was published in January 2019.
Alternatively, if you have staff that need training in this area then I can provide an introductory media law course from an editor’s/communications perspective.
Note that I am not a lawyer (much to my mother’s disappointment) – so nothing you read here or that I teach should be considered as legal advice. If you are facing a legal issue, then you ought to consult a lawyer – and a good one at that.Ask about staff training