An editor once told me you’re not a real journalist until you get your first lawsuit. That was almost 30 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 into 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 journalists.
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 social media page, you can be liable
In the US, where the notion of freedom of speech permeates the law, website 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 – you’re responsible for them.
That was supposed to change in 2024 thanks to the stage 2 defamation reforms. These would have given you a defence if you’d taken reasonable steps to remove or prevent access to the defamatory content within 7 days of a complaint. However, not all of the states are on board. At the time of writing (early August 2024), only NSW and the ACT enacted the Stage 2 reforms, with Victoria due to follow soon.
That’s not to say there aren’t other legal defences – most notably, the Honest Opinion defence – but the success rate of using them isn’t great. And by not great, I mean woeful. 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, 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 what you wrote is true – otherwise, it will be assumed it’s false. This not only means proving the truth of what you actually said, but also the imputations (ie defamatory meanings) 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 (but not-for-profits can)
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 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 promo – or caption – or poster
Even if you write 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 even 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, 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 and localised for Australia while keeping a global perspective.
Alternatively, if you have staff that need training in this area, 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 legal advice. If you are facing a legal issue, you ought to consult a lawyer – and a good one at that.
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