Defamation suits can be a megaphone for insults

ANTI-SOCIAL MEDIA: "Defamation is a relatively complex area of the law and it's much harder to recover damages than believed in popular culture." Photo: FILE PHOTO

ANTI-SOCIAL MEDIA: "Defamation is a relatively complex area of the law and it's much harder to recover damages than believed in popular culture." Photo: FILE PHOTO

It's now a cliché to remark on the increasingly interconnected nature of human relationships and the speed with which news can travel. Social media means a remark made to one person can very quickly spread across the world.

I suspect many lawyers are often asked about defamation in this context. Defamation is a relatively complex area of the law and it's much harder to recover damages than believed in popular culture.

Simply put, a statement is defamatory if it contains imputations that would cause the reputation of the person defamed to be lowered in the eyes of the general public. Traditionally an oral imputation was known as slander and a written imputation libel, however that distinction no longer exists in New South Wales.

A defamatory statement does not need to be made to the world at large, one or two people or a relatively small class of people (for example a group on Facebook) will suffice. This is relevant because it will be this type of scenario that most of us come across in real life and is at the heart of the paradox that leaves most lawyers very hesitate to recommend commencing proceedings for defamation.

Known by some as the "Streisand effect", bringing proceedings for defamation can very often lead to the defamatory remarks being broadcast to a much wider set of people than would ever have heard them had the matter been left alone. There are two instructive examples of this.

The first is in the case of "Brett Clayton Smith v Kenneth Craig Lucht" in the District Court of Queensland. In that case the plaintiff was himself a solicitor who sued the defendant after the defendant referred to him on a number of occasions as Dennis Denuto.

Those of you well-schooled in Australian popular culture will immediately recognise the lawyer from the film ‘The Castle’, whom the judge in this case described as "likeable and well-intentioned, but inexperienced in matters of constitutional law" (he's not alone there!).

These statements were made only to the plaintiff's client and her husband. The judge found that the statements were defamatory of the plaintiff but in a terrible turn of the events said that the plaintiff had suffered no harm because of whom the statements were made to. Publicity after the filing of proceedings is not be taken into account. 

The plaintiff is then in the position that only two people would have known of the "Dennis" sledge if he hadn't taken the proceedings, since he had it has been published widely. The judge said that the plaintiff had “called in an airstrike on his own position”.

The second recent case is in the District Court of New South Wales in proceedings brought by Ali Ziggi Mosslmani. Here the plaintiff complained that the publication of a photograph of him at an 18th birthday party with a healthy mullet by the Daily Telegraph suggested that he “deserves to be an object of ridicule because of his haircut” (we've all been there, remember primary school?).

Mr Mosslmani now enjoys a fair degree of notoriety and has, on the submissions of his barrister, been asked to leave his school due to the publicity and is now home schooled.

In the immortals words of (almost) everyone's favourite suburban lawyer – the great Dennis Denuto – it's imputations, it's Babs, it's the law … it's the vibe.

Michael Evans is a commercial litigation specialist who focuses on contracts, general litigation and dispute resolution at Whiteley Ironside and Shillington Solicitors.

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