What do Christian Porter, Ben Roberts-Smith, Rebel Wilson and Geoffrey Rush all have in common? They have all pursued defamation actions.

Defamation litigation has been on the rise for years, including by employees against their employers and other employees.

What is defamation?

Defamation may occur when defamatory material (written or spoken words, an image or a gesture) that identifies the aggrieved person (even without naming them) is published (i.e. heard or read by at least one other person as an announcement, in print, online, in emails, on social media, etc) and has the effect of damaging the person’s reputation (such as exposing them to ridicule, lowering their standing, or subjecting them to being shunned).

The test is how a hypothetical ordinary, fair-minded reader or listener would interpret the material.

Many acts of defamation are becoming common, such as sharing:

• negative comments about an employee;
• jokes about an employee, even as satire;
• photoshopped images or cartoons of an employee;
• gossip, which would not otherwise be considered trivial; and
• revenge porn.

Defending against a defamation claim

There are some defences available, where it can be proved:

• the published content is:
  • substantially true;
  • an honest opinion, based on accurate facts about a matter of public interest; or
  • trivial and unlikely to cause harm; and
• the publisher had a legal, moral or social duty to publish the material, and the recipient of that material had an interest in receiving it.

These defences are not always easy to prove and while there have been recent reforms of defamation laws, they have limited utility in an employment environment.

One of the most useful recent defamation law reforms in NSW, Victoria and South Australia has been the inclusion of a ‘serious harm’ requirement. This means the aggrieved person must prove the publication has caused, or is likely to cause, serious harm to their reputation.

What happens if the defamation claim is successful?

A court can:

• award monetary compensation, which will depend on the loss suffered;
• require an apology; and
• require the removal of the material.

The action can also seriously damage an employer’s reputation and business.

How to reduce the risk of defamation claims

Ensure the workforce is aware what is appropriate and inappropriate workplace conduct. Just like you wouldn’t condone bullying, discrimination and harassment in the workplace, make it clear that defamation won’t be tolerated. Quite often the conduct will be capable of being defined as defamatory, as well as a form of bullying and harassment, and possibly discrimination.

If it does occur, take action:

• investigate;
• if it has occurred, impose appropriate disciplinary consequences;
• remove it, correct it, or clarify the content; and
• if appropriate, apologise.

By Kelly Godfrey