DEALING WITH DEFAMATORY MATERIAL?

Living and working in strata often involves many parties exchanging correspondence and publishing documents such as meeting agendas or minutes. Unfortunately, at times such correspondence or publications may raise issues concerning allegations about the conduct, character or reputation (amongst others) of certain persons.  In these circumstances, such publications may potentially be considered defamatory in nature and expose the publisher to liability. This article aims to provide a high-level overview of defamation in Queensland and how to deal with potential defamatory material, including whether such material was published about you or you are asked to publish such material that may be defamatory about another person.

Defamation – Generally

In general terms, defamation involves a publication of false information which adversely impacts (or hurts) a person’s reputation. Defamation actions in Queensland are governed by the Defamation Act 2005 (“Act”).

There is no single test for what may amount to defamatory conduct, however generally it may take the form of a calculated representation made by someone to bring another “into hatred, contempt or ridicule” (Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340).

There are several legal and factual elements that need to be established in a defamation case, being:

1. the statement or representation must be communicated or published to a third party;
2. the information must be defamatory;
3. the information must be about the aggrieved party; and
4. there is no excuse for publishing the information.

Whilst there is no uniform criteria to determine whether a statement or representation is defamatory, the Courts have held that the question should be answered from the perspective of citizens of “fair average intelligence” (Slatyer v Daily Telegraph (1908) 6 CLR 1).

Amendments to the Act now provide that a further element to a cause of action for defamation is that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person (per section 10A of the Act).

Limitations for Companies

• A cause of action in defamation is limited to persons and “excluded” corporations. Under section 9(2) of the Act, a corporation is an ‘excluded corporation’ if:
• the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
• it employs fewer than 10 persons and is not an associate entity to another corporation.

Whilst the above limitation may restrict a company from pursuing an action in defamation if it is not “excluded” under the Act, this does not mean that the company is precluded from seeking other alternate causes of action, such as for injurious falsehood (which is beyond the scope of this article).

Protection for Body Corporate and Committee Members

Under the Body Corporate and Community Management Act 1997 (“BCCM Act”), certain protections are provided to bodies corporate and committees, including a body corporate manager engaged to carry out the functions of the committee.

Section 111A of the BCCM Act applies in circumstances where a body corporate publishes “required material” for a general meeting of the body corporate and that “required material” includes defamatory matter. Required material is defined to include the following as required under the applicable regulation module for the general meeting:

• a motion submitted other than by or for the committee for the general meeting;
• the substance of a motion mentioned in paragraph (a);
• an explanatory note for a motion mentioned in paragraph (a) prepared by the submitter of the motion.

Whilst the above protection may limit liability for defamation, it is important to note that such protection is limited to “required materials” published for the purposes of a general meeting (and not committee meetings or other publications).

Cases involving defamation in a strata context

We note that there have been a number of cases in recent history where members of a strata scheme have alleged to have been defamed by other members of the strata scheme.

In the matter of Jamieson v Beattie [2005] QDC 405 it was decided at first instance that several body corporate related publications (which were sent only to 40 people within the building) had defamed a Chairperson and ordered that the publisher pay the Chairperson general damages of $30,000, aggravated and exemplary damages of $6,000, interest and legal costs.  This District Court decision was later overturned on appeal by the Queensland Court of Appeal in Jamieson v Beattie [2006] QCA 395.

In the NSW case of Raynor v Murray [2019] NSWDC 189, the NSW District Court ordered at first instance that a Chairperson had been defamed by a resident of the building who sent an email (again limiting to a relatively minor number of persons within the building) which implied (among other things) that the Chairperson was “a small minded busybody who wastes the time of fellow residents on petty items”.  The District Court ordered that the publisher of the email pay the Chairperson general damages of $90,000, aggravated damages of $30,000 (with interest and costs reserved).  This decision was also successfully appealed and thus overturned in Murray v Raynor [2019] NSWCA 274.

What these cases tell us is that defamation cases in strata are a very technical and uncertain exercise.  What these oversimplified examples above don’t immediately show is the massive amount of legal costs, time, effort, energy, angst, and community disharmony experienced by all parties through the years of litigation over a publication which could have been avoided.  It is also unlikely that the parties involved will become famous friends and live happily ever after in strata-bliss after the conclusion of the appeals.

Dealing with Potential Defamatory Material

In light of the above, it is important to be aware of your rights and potential liabilities in dealing with publications which may contain defamatory material. Prior to publishing any materials, it is important to consider the contents therein and whether any statements or representations may potentially be defamatory in nature.

In circumstances where a person is instructed to publish a publication on behalf of another person (for example, a committee member instructing a body corporate manager to publish a motion with a questionable explanatory note), you should always read and assess whether such material contains any potential defamatory statements or representations and whether you are comfortable with the contents therein.  Otherwise, you may find yourself embroiled in a costly defamation battle by “publishing” defamatory material, even though the content is not your own.

If you are uncertain about whether the publication may be defamatory in nature, you should consider obtaining legal advice before taking any steps which may adversely expose you to liability.

Conversely, if you become aware of defamatory materials published about yourself or your business/company (if such is considered an “excluded company” under the Act), you should consider obtain legal advice on your rights and any potential claim(s) for defamation.

Article Contributed by Cameron Wilson, Senior Associate & James Nickless, Partner – Chambers Russell Lawyers