Defamation law can apply in the workplace in a variety of ways.

Examples are when:

• a dirt sheet about union delegates is posted on a union noticeboard in the workplace;
• you write to an ex-employee’s new employer alleging misuse of confidential information; and
• a workplace investigation report containing adverse findings about an employee is circulated among an executive team or board members.

Following is some advice from Justin Castelan of the Victorian bar, who recently shed light on how defamation law might apply in these kinds of situations.

What is a defamatory publication?

A defamatory publication is a publication of and concerning a person (not a company or firm) that conveys a meaning or meanings that tend to lower a person’s estimation in the eyes of “right-thinking members of the society generally”.

It will be defamatory if it:

• is calculated to injure the person’s reputation by exposing them to hatred, contempt or ridicule; or
• has the capacity and tendency of putting the person in the position of being shunned and avoided.

The publisher of a defamatory publication is liable under common law and statute. A person is a publisher if they intentionally assist in the process of communicating the defamatory content to a third party, regardless of whether the person knows the matter contains that content. The publication takes place when material is read and understood by the third party.

For example, the administrators of Facebook pages are publishers of comments uploaded by third parties because they intentionally create and administer the Facebook page, post content on that page, and encourage and facilitate publication of comments by third parties.

In Victoria, defamation proceedings need to be commenced within 12 months from the date of publication. As of 1 July 2021, damages for plaintiffs are capped at $432,500. The plaintiff needs to prove serious harm and must have sent a concerns notice with imputations of concern.

Defences to defamation

In Victoria, the defences to defamation include:

• truth or justification;
• fair and accurate report of public proceedings;
• publication of a matter concerning public interest;
• reply to attack (provided the publisher is not motivated by malice);
• fair comment or honest opinion; and
• innocent dissemination.

Where a publisher has a duty or interest (moral, social or legal) to make a statement, and the recipient has a corresponding duty or interest to receive that statement, the publisher will not be liable if the publication is defamatory. An example is where an employer provides a character reference about an ex-employee to a prospective employer.

For this defence to be available, the content must be sufficiently connected, relevant or germane to the duty or interest. So, a reference needs to be confined to what the referee understands are the requirements of the prospective role.

Furthermore, the publisher cannot be motivated by malice.

Motivated by malice

Malice can be shown if what is published is wrong because the publisher was grossly negligent or reckless in checking their facts.

In KSMC Holdings v Bowden (2020), a childcare centre sent out an email to parents regarding the departure of an ex-employee. The email stated that the ex-employee was not truthful with his studies and was moving on.

The NSW Court of Appeal ruled the employer had a defence to the defamation because parents of children who attended the centre were entitled to know why an employee, who had cared for their children, was no longer working there. The information was provided for that purpose and not to harm the ex-employee.

In Wong v NAB (2021), the employer sent an internal email to 432 recipients announcing the restructure of a department and the departure of an employee. The Court ruled the email was not defamatory, and even if it was the employer had a defence because recipients had reason to interact with the department in question and had a legitimate interest in being informed of the composition of the team members. Again, the employer provided the information for that purpose and not maliciously.

Takeaways

If you learn of a potentially defamatory comment published on something that you control as an employer, which is able to be read by other employees and/or persons outside your organisation, you will liable as a publisher if you fail to have the comment removed. Examples are staff notice boards, intranet and workplace email.