Every other week we read about a public figure suing a media outlet for defamation, seeking to vindicate their eminent reputation following something that has been said in a national newspaper, on the six o’clock news or on commercial radio: Geoffrey Rush and The Daily Telegraph; Craig McLachlan and the ABC and Fairfax; Rebel Wilson and Bauer Media. But it is not only celebrities whose reputations are important and which are protected by the law; and it is not only major broadcasters or publishing houses who are sued for defamation.
Defamation involves no more than a publication by one person to another (other than the plaintiff) that is likely to reduce the reputation of the plaintiff in the minds of right-thinking members of society generally.¹ Many careless statements that occur almost as a matter of course are potentially defamatory. A defamatory publication can be oral or written. In some cases defamatory meaning can be conveyed by conduct, without any written or spoken communication. ² Defamation is a tort of strict liability which means that the publisher may be liable even though he or she did not intend injury to the plaintiff’s reputation and acted with reasonable care. ³ Anyone who in any way participated in a defamatory publication is liable for it. For these reasons, it is surprisingly easy to defame another person – regardless of the subject’s celebrity or the publisher’s audience.
Professionals, including health practitioners, are quick to respond to attacks on their reputations, particularly when their professional skills and judgment are impugned. This is understandable. A professional’s reputation is a large part of their stock-in-trade.
At the same time, professionals including health practitioners, are often called on to pass judgment or to critique others’ professional skills and judgment or adherence to ethical standards. Some obvious examples are:
- under section 141 of the Health Practitioner Regulation National Law Act 2009, a registered health practitioner is required to report another practitioner’s ‘notifiable conduct’;
- doctors may be required to advise patients about the adequacy or suitability of another doctor’s treatment provided to a patient;
- health practitioners might be required to comment about another’s performance as an employee and those comments may be adverse;
- a practitioner might write an academic article critical of another practitioner’s theories or research.
In the ordinary course, these types of publications will be protected by laws which acknowledge a public interest in open communication on certain subjects. Section 237(3) of the National Law provides that a practitioner making a notification under section 141 of the law does not incur a liability for defamation. Defences may also be available under legislation and at common law. Most relevantly for health professionals:
- justification (truth) may provide a defence if the imputation about the plaintiff is true in substance and in fact;
- qualified privilege protects statements made by a person who has a duty or interest to make the statement to a recipient who has a corresponding duty or interest to receive it;
- fair comment permits the expression of comment based on facts that are truly stated and which is fair;
- honest opinion permits the expression of an honestly held opinion based on proper material and that relates to a matter of public interest.However, it is far preferable to avoid a situation in which it is necessary to attempt to invoke a defence that might be available.First, the defences to defamation actions are subject to limitations. For example, if the statement has been published widely including to people without a particular interest in the subject matter, a qualified privilege defence might not be available (this is particularly important to remember when posting comments on social media). Other defences might not be available if the statement has not been made in good faith or its publisher has not acted reasonably.Secondly, the publisher bears the onus of making out any defences that might be available. The defences often turn on technical legal points and can be difficult to establish. For example, it might be difficult to succeed on a truth defence if witnesses are not available or will not co-operate. Regardless of their merits, defamation defences are invariably emotionally taxing and expensive to run.
Professionals frequently become involved in differences of opinion with others. Often, these turn on tightly held points of principle into which there has been considerable emotional and intellectual investment. These are the perfect conditions for defamation claims and there is almost no way for professionals entirely to eliminate the risk of them. There are, however, ways of minimising the risk:
- chat rooms, blogs and on-line review sites are one of the largest sources of defamation claims against professionals. They are either treated as a forum for informal repartee in which careless but harmful comments can be made or as a soapbox for disgruntled activists. Resist the temptation to make casual negative comments about others or grand denunciations when posting online;
- exercise caution when publishing about others in e-mails. It is very easy for e-mails to be forwarded many times;
- humorous comments can also be defamatory. 4Avoid publications that ridicule others, even if they are meant in jest;
- when expressing opinions, ensure that the facts on which they are based are readily identified;
- an apology may ameliorate the effects of a defamatory comment if it is published with the same prominence as the defamatory publication. Before publishing any apology, it is preferable to seek legal advice to ensure that it does not aggravate the initial defamation (by, for example, repeating the defamatory imputations).
“The law is an ass” so if you want to talk about publications that concern you in any way, take a moment and seek advice from MIGA.
1Sim v Stretch  2 All ER 1237
2Phelan v May Department Stores Co 443 Mass 52 (2004)
3Lee v Wilson (1934) 51 CLR 276; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
4Parmiter v Coupland (1840) 6 M&W 105