Defamation and "He who must be Obeid"
The law of defamation has featured prominently in recent current affairs, with high-profile politicians once again the stars of the show. A fascinating recent example pertains to the best-selling book He Who Must Be Obeid, which charts the rise and fall of disgraced former New South Wales politician Eddy Obeid.
The book implicated respected businessman and University of Western Sydney board member Christopher Brown in Mr Obeid’s corrupt dealings, and also makes mention of Mr Brown’s father The Honourable John Brown AO, a Hawke-era Minister.
It would appear that authors Kate McClymont and Linton Besser did not do their research: the Christopher Brown associated with Mr Obeid was in fact a significantly older man of British extraction, a far cry from the Parramatta-local mentioned in the book.
The best-seller was subsequently pulled from shelves, and publisher Random House is amending future prints. Unsurprisingly, Mr Brown has engaged a defamation lawyer.
Defamation Law in Australia
While this is perhaps a novel example, it reminds us all of the fine line that exists between freedom of speech and the protection of one’s reputation in the community. In Australia, the publication of a defamatory statement is an actionable wrong under both common law and legislation. In the last decade, all Australian states have adopted a uniform approach to defamation.
At its basic level, defamation requires two elements:
- A meaning that, if seen or heard by an average person, would cause their opinion of you to be significantly lowered. “Meaning” can include spoken or written words, gestures, exclamations, laughter, printed images, electronic images, publications on the internet, comments on social media and so on.
- A person to actually see or hear the defamatory statement (other than the defamed person).
However, there are several main defences available against a claim of defamation*:
- Truth: a statement cannot be defamatory if it is true (subject to there being no malice in the publication of the true statement).
- Consent: if the defamed gives consent for publication, they cannot later make a claim of defamation.
- Importance: if the information is unlikely to actually damage a person’s reputation, a claim of defamation will not succeed.
- Privilege: if a statement, no matter how defamatory, is made in parliament (Commonwealth, state or territory) then the maker of the statement will be protected by absolute privilege.
There also exists another barrier to a successful defamation action: cost. Defamation proceedings can be prohibitively expensive and robust, with any final damages outweighed by legal costs.
Ultimately, the motivation for defamation litigation is often to mend a damaged reputation and provide satisfaction for the offended party. It would seem that this is sometimes forgotten in the cut and thrust of court action. Because of this, a litigation-free solution can be an excellent option to resolve a defamation issue. Legislators have recognised this, with the Defamation Act 2005 (Qld) providing a framework for potential litigants to make amends.
Non-litigation solutions have the advantage of side-stepping the potential quagmire of defamation proceedings, and cutting to the core of a party’s grievances. Remedies such as public apologies, retractions and corrections can be readily negotiated and applied. Additionally, the aggrieved party is spared having to put the defamatory materials on the public record in court.
The key to solving a defamation issue is seeking advice from an expert source. Clifford Gouldson prides itself on a practical, cost-effective approach to claims of defamation. We recognise that reputation matters, and understand the distress and doubt that a defamatory remark can bring.
Our Litigation team will be real and commercial. We will construct the most incisive path forward for you, and assist you at every stage on the way to a resolution. With a focus on practicality and expediency, our Litigation and Dispute Resolution team are ready to assist.
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