Remember James Ashby. He is the guy who sued the commonwealth, alleging it had failed to provide a safe workplace. He alleged that the now backbencher, Peter Slipper made unwelcome advances towards him and sent him explicit and sexually suggestive text messages. Well, the matter was settled, and Ashby has reportedly walked away with a $50,000 settlement.
In the last few days, in a statement, he said he was now considering defamation and a possible contempt of court proceeding against the Commonwealth Attorney General, Nicola Roxon.
Now, I don’t want to go into the specifics of what Mr Ashby chains was defamatory, but I do want to talk about defamation.
Defamation is one of those terms that is bandied around, often without people being aware of what the term actually means, whether the alleged defamatory comments have a defence and of course, completely unaware of the difficult nature of running these matters before the court system. In fact, one of Australia’s longest trials was a defamation matter. It’s not a simple area of law, and up until recently different states had different views on the matter.
Well, recently there has been uniform legislation dealing with defamation, applied across the whole of Australia.
So, what is defamation?
Simply put, it’s to say, write or publish something about a person that does them some harm. In other words, by doing this, their reputation suffers and people then respond negatively towards them. Now, if those alleged defamatory remarks are published, then the publisher may well be liable as well.
There’s essentially 3 thresholds that need to be met.
The first of which is that the words were defamatory to an ordinary member of the public. In other words, if I said the remarks to you, would you consider them to be defamatory.
The second is that the words refer to the person bringing the claim. Now, it might be the case that the person who defamed the person bringing the claim, might have been a little covert or dark, and tried to conceal their remarks, but if it can be interpreted that those comments were intended for the person, than it will hold.
Now number 3 is that the remarks or comments, or whatever it is, must have been published, or in other words, heard or seen by a third person.
On the basis of those 3 things, you now might think you’ve got an action against the bozo who slandered you to your mates down at the Pub on Friday night.
But, has this punter got a defence.
One of the defences might be that it was true. So, he said something about you to your mates that held water.
Another is honest opinion. In other words, he said something that he honestly believed was true about you.
Now, another defence which won’t apply to most of us, is where you can say certain things that won’t be deemed as defamation in if they are said in a court or in parliament.
There are a string other defences available, but most won’t fit.
So, you’re sitting there now thinking, well, sounds easier enough, why don’t we see a lot more defamation cases in court?
Well, because it’s going to cost you money to bring an action, and of course one great difficulty for the court is how they monetize or financially assess the harm to your reputation. There may not be a whole lot of money in it.
That’s not to say you shouldn’t consider it, but you might be just as successful if you ask for a written apology, or if something has been published, asking the publisher to withdraw it, offer an apology or a clarification.
Defamation in the internet age, is obviously a massive issue, and the same laws apply. I will do a piece specifically dealing with this soon.
