Many not-for-profit organisations (NFPs) exist for the purpose of exposing and challenging acts, practices or behaviour perceived to be unethical or unjust. In advocating for change, some NFP’s may publish critiques and commentaries on politicians or corporations which can damage their reputation. Therefore, it is always important for NFPs to consider the risks associated with what they may be communicating to the wider world, lest they be opening themselves to defamation proceedings.

Defamation broadly refers to lies or rumours that are spread about someone who would rather them not be spread. In law, the following elements must be established:

  1. one must communicate information about another person to someone other than that person;
  2. the ordinary reasonable recipient of that information must be able to identify the person who is being communicated about; and
  3. that communication must contain defamatory content in the mind of an ordinary reasonable person.

The first element is easy to conceptualise – it can be anything from some water cooler style gossip in the office to the headline of SMH describing Mr Hockey as a “Treasurer for Sale”, as seen in Hockey v Fairfax Media Publications Pty Ltd.

The second element is a little trickier. Although this element obviously includes named people, such as Mr Hockey in the above article, it can also apply where the identity of that person can be inferred. In Pedavoli v Fairfax Media Publications Pty Ltd, it was claimed in another SMH article that a female teacher from St Aloysius College in her late 20s who taught English and drama engaged in sexual relations with school students. There was only one such teacher that fit that description, allowing members of that school community to identify Ms Pedavoli (it should be noted that Ms Pedavoli was wrongly identified, and that the teacher who engaged in the alleged conduct did not fit the description in the article). Justice McCallum found this to be sufficient identifying information and therefore defamatory.

The third element presents more of a challenge. This is measured by applying the objective test of the ordinary, reasonable person and questioning whether the communication would cause them to think less of the potential plaintiff, either explicitly or through inference. If so, then the communication has defamatory meaning.

There are various types of comments that could make an ordinary, reasonable person think less of the subject in question. For example, comments that impute that the subject is biased or corrupt (like the suggestion about Mr Hockey), that the subject is inappropriate for their chosen career (like the suggestion regarding Ms Pedavoli), that the subject is incompetent, unable to carry out their professional duties with due care or a person of low moral standing. The list is endless, and must be assessed on a case by case basis.

Bringing Proceedings

Even if one is able to prove the above elements, it does not necessarily mean that they will be able to bring proceedings. Under the Defamation Act 2005 (NSW), which is substantively the same as the defamation laws in other Australian states, corporations cannot bring proceedings unless they either are an NFP or have less than 10 employees.

Whilst this may prevent some defamation proceedings being initiated, it is important to remember that directors, managers and employees of a corporation can still bring proceedings if the defamatory material could be construed against them as individuals.

It is also worth noting that although the vast majority of corporations may be prevented from bringing an action in defamation, this does not stop them from commencing proceedings in another tort known as “injurious falsehood”. Whilst this tort is more difficult to prove than defamation, as there must be actual damage and an intention to cause that damage, corporations are not barred from using it as the basis for bringing legal proceedings.

Defences

There are a range of defences which exist that can protect those that publish what would otherwise be defamatory material. Some of these are outlined below:

Truth/Justification:

if the otherwise defamatory statement is objectively true, a claim in defamation can be defeated.

Fair comment/honest opinion:

an otherwise defamatory statement can be defended if:

  • the statement is recognisable as a comment (i.e. it is a statement of opinion, like a criticism or an observation, rather than a statement of fact);
  • the comment is based on objectively true facts or “proper material”;
  • the comment is on a matter of public interest; and
  • a fair minded person could honestly express the same comment based on similar facts or proper material.

Qualified privilege

an otherwise defamatory communication can be defended if one can establish that:

  • the person receiving the communication has an interest in knowing that information;
  • the defamatory content is communicated in the course of providing that information; and
  • the conduct of the person communicating the material is reasonable in the circumstances.

Take away points

As agents for change, NFPs can inadvertently find their communications and publications entering potentially defamatory territory. However, there are three key guidelines which can be followed to minimise the risk of a defamatory finding.

  1. Confine criticisms to the conduct of others, rather than their character. Calling someone incompetent is likely to be defamatory (unless one can prove that such a statement is true), whilst explaining the flaws in a research methodology allows you to criticise an outcome, rather than a person. It is more difficult to prove that the latter is defamatory.
  2. Double check your sources. Defences tend to rely on objective facts, rather than what the person stating the facts understood them to be. Make sure you trust where your information is coming from before you use it as the basis of a critique.
  3. Restrict yourself to opinions, and reduce inflammatory language. This will increase the prospect of successfully relying on the fair comment defence whilst simultaneously enhancing your credibility.