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Thumps Up, Thumps Down
Tips for interviewing clients who claim they are defamed.

Mark Cerne, Associate

The result last week in the Federal Court of Australia in favour of media organisations and those individuals who work at them in defending defamation proceedings launched by Ben Robert-Smith, which may still end up before the Full Bench of the Federal Court, is a huge reminder to practitioners in this space to caution clients of the potentially disastrous impact of losing their defamation claim, from the very first interviews. 

 

Among the tips pointed out by counsel over the years to the writer, the following seem to be salient and timely pointers when first interviewing clients’ claiming damage to their reputation from communications to third parties.

 

First, does the client have proof of the publication they deem to be defamatory?

 

Since 2001 the law in Australia has deemed publication to be a two-way street.1 In fact what is required is evidence of “communication” in the form of downloads, hits, likes, retweets etc, if considering, as more often we are, that assertions of defamation are against authors of on-line communications.

 

Remember that publication online may be deemed from words, images, sounds etc meaning an inadvertent like or thumbs up of the defamatory content may apply to the claim or present a new publication.

 

As publication will not be assumed by the Court evidence of the publication/communication is imperative to have from the client in the first meeting, while it also sets the clock ticking on the single publication rule if dealing with online claims of defamation as it sets the date of the upload or access date. A separate and careful consideration needs to be given to whom will be deemed the publisher, who has voluntarily participated in publication and putting it bluntly - who conduces (old word) to publish and is worth suing.

 

Second, what does the client say is the “sting” arising from the publication?

 

Does the “sting” arise from the ordinary natural meaning of the words,5 images or otherwise or is there extrinsic evidence to let the imputations be understood in a broader context – true innuendo.

Third have you advised the client that, unlike other areas of law, they will be on trial, as in it will be their reputation on trial in defamation proceedings. How they look, seem in person or play to audience (judge, or jury) will bear on the result. Are there skeletons to be found in the closet? Are we convinced of the answers?

 

Fourth, what defences may arise? Have you already begun to consider those defences in the first interview as the imputations will have to avoid a barrage of defences to get up, including justifiable publication, contextual truth or Hore-Lacy appeals.

 

Finally, should you have engaged counsel already?

 

As Concerns Notices are a mandatory step before issuing proceedings there is no room for later changes of imputations without attracting the attention of the Court. Imputations should be framed to closely follow the text to which they apply.

 

A slip at the first hurdle in a defamation proceeding will embolden the defendant and, at the very least reduce the potential to settle a controversy and allow the defendant a public soap box. 

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