Emails are now imbedded into many of our workplaces as an efficient means of communication. However, we have all been in situations where, for whatever reason, we have been tempted to send an email, not in the right state of mind, to a colleague which speaks of their performance in a less than complementary manner. We may even have been tempted to send that email and any response to other colleagues. But before you hit “SEND” think of, not only your ongoing professional relationships but also for you personally, whether you expose yourself to litigation for defamation.
Defamation is often considered a tort which is riddled with high emotions and high risks. Often it is a cost benefit analysis for the defamed person as to whether or not they are prepared to bear the expenses of preparing a claim and a trial of complex issues before a Judge. The complexities of the issues do not make these trials simple matters albeit that the action which has resulted in the litigation is often with little thought. However, with being able to rely on email trails between people some of the factual issues of publication are now easier to establish.
Regardless of whether or not the defamatory statements are contained within an email, letter, newspaper article or in a speech, the principles remain the same as to what constitutes defamation. To develop a successful action it is essential that it be established:
- There is a defamatory imputation to an identifiable plaintiff which is conveyed in the natural and ordinary meaning of the words used;
- The imputation was published; and
- The defamatory statement is not protected by any privilege or defence at law.
It has been considered that it is a question of law as to whether a specific matter complained of is capable of conveying the imputation or imputations pleaded, but it is a question of fact as to whether or not a particular publication is defamatory.
The relevant test is whether:
- the ordinary reasonable reader would, in fact, have read the matter complained of as conveying the imputations pleaded; and
- that reader would, in fact, have understood such imputations as being such as to cause ordinary decent folk in the community, taken in general, to think less of the plaintiff.
The Defamation Act 2005 (Qld) which sought to codify the action of defamation, outlines the relevant issues which may provide a defence to the otherwise defamatory publication. Generally, the following circumstances may provide a defence at law, namely:
- Defence of justification – the defamatory imputations carried by the matter of which the plaintiff complains are substantially true;
- Defence of contextual truth – the defamatory imputations are substantially true and they do not further harm the reputation of the plaintiff;
- Defence of absolute privilege – where the publication of the defamatory imputations was in the course of proceedings of a parliamentary body, Court or tribunal;
- Defence of publication of public documents – the publication of the defamatory matter was contained in public documents or is a fair summary of material contained within a public document;
- Defences of fair report of proceedings of public concern – the publication was published honestly for the information of the public or the advancement of education;
- Defence of honest opinion – the publication was an expression of opinion rather than a statement of fact, and the opinion related to a matter of public interest and the opinion is based on proper material.
Accordingly, the statements which are said to be defamatory need not be published with the intention of being defamatory. The more relevant question is whether an ordinary member of the community would have considered the imputations as defamatory. That is, it is the effect of what was said to a person’s reputation, not the intention, which is determinative. This is particularly relevant where it is so easy to hit “SEND”. The damage to a person’s reputation can be instantaneous and so too may be your exposure to litigation in doing so.
