68 - July 2012
Whether you are a person who has strong opinions and is prone to expressing them, a stupid person who cannot keep his or her mouth shut or just an innocent victim who has a reputation to protect, there are certain things that you should know about defamation.
I set out in this "Defamation Special" the things you need to know to weigh up your chances, avoid defamation issues or at least stop digging.
Defamation-the importance of gathering evidence
Generally, defamers do not defame people who they think will punch them in the mouth. So too, if you have the option of frightening people by using threats or just your unpleasant manner you do not need to demean yourself by resorting to defamation. This is why the Mafia is not big on defamation; in fact, they go out of their way to be nice to you up to the point of you being garrotted from the back seat of your car.
A problem arises when you lack sufficient evidence. For instance, there is the often alcohol fuelled, “I was only joking” insult, which grows into a whispering campaign which has proved so popular in clubs over the years.
Your lawyer will seek to gain evidence which usually amounts to statements from other club members who are naturally reluctant to get involved and often report what they have heard from others rather than what they have directly seen or heard themselves. Therefore, it is best to consult a lawyer early as they can coach you on gaining sufficient evidence and how best to position yourself.
Ironically, in order to try to stop the defamer, the victim often must broadcast the insult which in turn places their own conduct under the microscope. This deters victims from doing anything at all, and provided that the perpetrator is sensible enough to stop, the matter ends and people move on with their lives, or at least the perpetrator finds another victim.
If you have the misfortune of being defamed by a stupid person, you had best gather sufficient and relevant evidence or seek Mafia assistance.
(c) Paul Brennan 2010 All rights reserved.
How to deal with defamation
Gossiping-the do's and don'ts
I admit that I am a good communicator but to label me a gossip is both hurtful and defamatory. I am a caring person and if I do pass on information it is for the good of the community, even if it turns out to be wrong. Alternatively, it is entertaining tittle tattle. Surely the law is not taking away the basic right of a chat between acquaintances, however distant?
(name and address withheld)
The victims of gossip, understandably, often turn out to have no sense of humour about it at all.
If you have gone too far, a quick apology, given and accepted, is the best course of action for all parties. The alternative is to wait and see if the victim will sue you for defamation which can be a successful strategy depending on the seriousness of your defamatory statements. Lawyers and probably spouses can help even stubborn people to assess the stupidity of their statements.
You could claim “qualified privilege” in that you acted reasonably, not recklessly in making the defamatory statements even if they turned out to be wrong. A court will consider if it was your duty to make the statement e.g. a member of your staff had a terrible secret, or it was in the public interest e.g. your mother-in-law is an axe murderer. The person you tell must also have a need to know. For instance, your mother-in-law’s next door neighbour probably does not need to know about your employee’s secret but may find it useful to know about your mother-in-law.
You must act sensibly and check your source. If it is someone who is unreliable or is as big a gossip as you, then it may be best not to pass it on, especially if it will have serious consequences e.g. your mother-in-law’s arrest, detention and trial, even if she is eventually acquitted. Consider instead, confronting the accused person as people often get the wrong end of the stick.
If you were being malicious then you lose the protection "qualified privilege" provides, even if you were telling the truth. It can still be malice if it was not your intention to injure the victim. The question is, did you misuse the information and did you have the right motive in telling?
If all else fails, there may be a few gossips on the jury who would empathize with you and quickly decide that you are blameless. But I would not count on it.
(c) Paul Brennan 2011. All rights reserved. Extract from John Fytit’s International Legal Problem Page. For more go to https://www.lawanddisorder.com.au/legaladvicepage.html
Financial planners! Do you have lawyer clients with a sense of humour about their money? No? Well, click here anyway to reward your favourite lawyer with a small gift of a key ring, coaster, intimate apparel and lots more to remind him or her of you.
Paul Brennan is author of the audio CD (with eBook embedded) “10 Greatest Legal Mistakes in Business…and how to avoid them” in collaboration with Business Essentials Australia's leading audio business magazine.
Defamation-what is the damage?
All coppers are bastards, or at least that is what most football crowds would have you believe. Yet, despite it being broadcast to the nation and repeated on Match of the Day, policemen do not tend to sue for defamation.
This is more because defamatory statements are usually ignored or treated in kind rather than police officers having a sense of fun.
As an alternative to violence (or a good kicking in the back of a police van), a court action for defamation comes as a poor second. Most people want a grovelling apology and compensation. They usually settle for an early apology and modest or no compensation even if they have a lay down hand. However, they can also enter into a death struggle with their intransigent defamer as they face the anxiety of a trial with their homes on the line, until they both spend some money and decide it is not worth it, or their spouses tell them to knock it off. Sometimes the defamatory statement is so serious that it cannot be left and you are locked into a trial.
You can claim not only for financial loss such as loss of business, customers and employment, but also for personal injury such as depression and your personal distress, anxiety, grief, annoyance and hurt feelings caused by the injury to your reputation which is presumed, even for financial planners.
You do not need to prove that the defamer was being malicious but it can result in a bigger payout, as can proof of their recklessness, indifference, lack of apology or general stupidity.
Unless you can prove financial or physical injury do not expect to make a killing. Somewhere between $10k and $50k would not be unusual and over $100K is fairly exceptional. The costs awarded against the losing side are usually a significant penalty.
Furthermore, the dead cannot be defamed and a defamation action dies with you. This is a big incentive to hang around or to finish them off.
(c) Paul Brennan 2009. All rights reserved.
This article was first published in the Law & Disorder eZine in 2009.
LAUNCH OF NEW EBOOK
Does your spouse have money problems because of you procrastination over the promotion of your services?
Does your mother want you to appear on national breakfast TV?
Do you envy the captive audience of your competitor’s legal column or radio spot as your own clients do not listen to you?
Does your marketing adviser think that if you wrote a book or even an eBook, your other problems would be solved?
Do you cringe at the thought of writing a newsletter, blog or calling a journalist but are desperate enough to try it?
If you have answered "yes" to any of these questions you may be interested in this new eBook advising lawyers and other professionals in a practical way, things that they can do to tastefully promote their services which includes not only how to make an audience laugh but also how to:
In an entertaining and easy manner, Paul writes about what has worked and what hasn't worked for him so that you can quickly and painlessly decide what will work for you.
Disclaimer: The content of the Law & Disorder eZine is to give you legal basics and in some instances, included unashamedly to try and make you laugh. In law, it is sometimes difficult to work out what is serious and what is just for fun. Therefore, if you plan to do anything legal, rely on your own lawyer’s advice or instruct me to look at the particular facts of your case. Not only will I deny responsibility for the legal content but also for some of the jokes.