The case of Ell v Milne (No 5) [2013] NSWSC 246 reinforces the need for authors to separate opinion from fact when communicating with third parties.

Facts

This case arose out of an email sent by Councilor Katie Milne of the Tweed Shire Council. In the email, Ms Milne made several imputations about Mr William Ell, a local property developer including that:

  1. he was implicated by his own wrongful conduct in the murder of Mr McGurk;
  2. he had a scandalous association with a murdered man (Mr McGurk);
  3. he paid $100,000 bail for a person who was suspected by police of serious crimes of violence in order to advance his business interests;
  4. he paid bail for a person suspected of serious crimes because he approved of the use of violence in his business ventures;
  5. he paid bail for services rendered by Mr McGurk as a standover man; and
  6. he conducted his business with regard to property development by hiring a person with a reputation for violence.

Ms Milne sent the email, headed “letter to the editor”, to several newspapers and special interest groups.

Court’s Decision

The court found that imputations (b), (c) and (f) were conveyed in the manner complained of. Notably, her Honour defined a “scandalous association” (imputation (b)) as “one which causes scandal to the public”. The court held that the characterisation placed on Mr Ell’s association with Mr McGurk satisfied this definition.

However, the court was not satisfied that imputations (a), (d) and (e) were conveyed. Her Honour labeled the leap from allegations against Mr McGurk to the proposition that Mr Ell approved of the use of violence in his business ventures as “too strained”.

Practical Tips

This case highlights the need for both individuals and companies to implement adequate safeguards to protect themselves from potential defamation claims. Before content is published, authors must ensure that:

  • all information contained in the publication is true. A defence is available to publishers where a statement is substantially true;1
  • a second responsible individual has viewed the work prior to publication;
  • adequate records are maintained that substantiate content. This will also provide protection in the event that a defamation action is launched at a later date;
  • insurance has been purchased, particularly where content is being published on behalf of an organisation;
  • the place of residence of the subject of the story has been given consideration. For example, the subject of the article will usually have a reputation in the place where they are a resident. Further, each State and Territory have different defamation laws; and
  • the article does not breach any other laws such as contempt or copyright.

Finally, it should be noted that the author’s subjective intention (good or otherwise) is irrelevant when considering the meaning of words for the purpose of commencing an action.