Defamation

WHAT IS DEFAMATION?
Defamation is the law to protect people's reputations, and to balance this with protecting reasonable freedom of speech.

If someone thinks that you have broadcast anything that damages their reputation they can sue you and the judge will decide if it is defamation. If so, you could be ordered to pay fines, or damages to the person and payouts are often huge.

Anything that YOU play in your program may be liable for defamation, including anything a guest says, any pre-recorded material or anything written by someone else that you put to air.

You need to understand that you, your guest, your producer if you have one, the station AND the licence holder could be sued for defamation about something that you broadcast.

Never think that because you are broadcasting on a community station you can take the risk because you are not being heard by enough people. Public figures and companies employ media monitors to provide weekly reports on EVERYTHING that is said in the media about them. Many stations stream online too and can be heard all over the world.


 * Someone can sue for defamation if**
 * They think that they can be __identified__ from what you have said. You don’t have to NAME them, if you say enough about them that listeners would know them then you could still be sued. For example if you talk about “the owner of the chicken shop at ………” people would know who you mean.


 * They think that what you say will damage their reputation.

For example, people have lost defamation cases because they


 * said a person is a coward, dishonest or cruel


 * said that a public figure mis-used their position to look after their own private interests


 * said that someone has committed a criminal offence


 * broadcast comments which make a person look ridiculous, or damaged a person's professional reputation

A lie or wrong information about a person COULD be seen as defamation, but ONLY if a judge decides that it damages that person’s reputation.

Big corporations with 10 or more employees cannot sue. However, individuals or groups of individuals identified in a broadcast can still sue, such as company directors, managers, CEOs etc.

HOW TO MAKE SURE YOU ARE NOT SUED FOR DEFAMATION

 * 1) Think carefully before you interview anyone. Is there a risk that they might say something that could lead to being sued? If you think there is a risk, then PRE-RECORD the interview.
 * 2) Think carefully before you read anything on air that someone else has written, CHECK IT BEFORE YOU READ IT OUT and if you have any concerns check with a supervisor

Just because someone else has written or said something it DOES NOT mean you can repeat it safely. You can still be sued. Take extra care if you are reporting something that has been said in Parliament or in a court case. (see below)

You can defend yourself against defamation by arguing that what you broadcast was **//“fair comment”.//** This means that you may comment on a matter of **__public interest__** as long as
 * the comments are based on true information
 * the opinions are "honestly held" by you, not designed to harm someone or their reputation
 * the opinions are “reasonably based” on true information

questions to ask yourself before broadcasting

 * ** Can the person be identified? ** Is there enough information for others to work out who the person is?


 * ** Can you PROVE what you say is true? ** Under Australian defamation law this is the main thing you have to do, but if you have just heard or read something and cannot PROVE in court that it is true then you are taking a risk. Do you have evidence to support the facts? Would the people you have got information from (your “sources”) be able to give evidence in court if necessary?


 * ** Have you acted “reasonably”? ** Have you made reasonable attempts to get the person's response to things said about them on air? Have you included the responses in the broadcast?


 * ** Can you trust your sources? ** Do they WANT to damage the person’s reputation?


 * ** Is the issue a matter of public interest? ** Do listeners NEED to know about this? Can you argue this in court?


 * ** Does the broadcast talk about a person’s public position? ** If not then you will find it hard to prove it was “reasonable” to broadcast it.


 * ** Put yourself in the shoes of the person being talked about. ** Would you want to sue to protect your reputation?


 * **Which parts of the broadcast are facts?** Which parts are suspicions or allegations? Is it clear which is which?

** REPORTING ON WHAT IS SAID IN PARLIAMENT, COURTS OR ROYAL COMMISSIONS ** People speaking in these situations can not be sued for defamation. What they say is “privileged”. Reporting what they say has to be treated carefully. Media can repeat what has been said as long as it is a 'fair and accurate' report of what was said. You MUST make it clear __who__ made the comments and __where__ eg
 * ** Is it important to broadcast quickly? ** Can you wait to get a response from the person being talked about? Can you try to? Can you explain to a court why not?

// “The Leader of the Opposition deliberately lied to police, according to a statement in the State Parliament today by the member for ………” //

You must not add COMMENT of your own. Be careful. You could be sued for broadcasting anything that “exerts improper pressure” on Members of Parliament, or brings Parliament into disrespect, or reveals the secret proceedings of parlia­mentary committees.

Court reporting must also be “fair and accurate”. For example do not broadcast a report of the sensational parts of a trial, without reporting on the defendant's side of the story. TAKE CARE; You and the station (the defendant) have to prove they did not defame, rather than the person complaining (the plaintiff) proving that you did! WHAT IS CONTEMPT OF COURT?

You must not broadcast anything which could obstruct the course of justice. Contempt of court is punishable by a fine and/or imprisonment.

You can not COMMENT once a person has been charged or summonsed, or while the case is before a court. A court case is not over until any appeals have been heard. During a case all the information and proceedings are protected or “sub judice”

It is a contempt of court to damage community respect for the justice system eg, to suggest that a judge was biased or that a person received a light sentence for some reason

predudice of a trial
Everyone is entitled to a fair trial, regardless of their record. Media MUST NOT say anything that would damage a person's fair trial. Eg if you say //"two persons murdered"// rather than //"two persons shot dead"// it pre-­judges the issue.

There are ways that you could damage someone getting a fair trial, especially if you interview a person who may be called to give evidence. You could create suspicion about a person who is not charged. You could influence a potential witness's future evidence. In worst case scenarios a trial may be cancelled because it has been prejudiced through media coverage. This happened when Derryn Hinch reported on a child abuse situation and the suspect couldn’t be brought to trial because there had been so much negative publicity he could not receive a fair trial.

You must not broadcast anything which could obstruct the course of justice. Contempt of court is punishable by a fine and/or imprisonment.

** Always get professional advice if you have any doubts **

It is also possibly contempt of court for a person to refuse to reveal their sources. So be very careful about reporting anything said by a person who wants to remain anonymous. //Eg// // Herald Sun's Gerard McManus and Michael Harvey received criminal records after refusing to reveal their source for a report about government plans to short-change war widows. // In 2009 Australian journalists are campaigning around the detail in new “shield laws”. These are designed to allow journalists to use information without revealing the sources.