Important Defamation Guidelines
You should be careful to avoid posting defamatory material which could result in legal action being taken against you and HotCopper.
To help you, set out below are some defamation guidelines.
Not Legal Advice
These Defamation Guidelines are intended only to provide a summary and general overview of defamation law. It is not intended to be comprehensive nor does it constitute legal advice. It should not be relied upon as legal advice. You should seek legal or other professional advice before acting or relying on any of its content.
If you are unsure as to whether your post is or may be defamatory, you should seek legal advice.
HotCopper and its solicitors make no warranties or representations about these Guidelines. We exclude, to the maximum extent permitted by law, any liability which may arise as a result of the use of these Defamation Guidelines or its content.
What is defamatory?
A defamatory statement is one that would cause an ordinary person to think less of the person the statement is about.
You must consider the imputation conveyed by your posts, as that is what determines whether it is defamatory. Many statements can have a defamatory meaning beyond the exact words used.
Most commonly, a post will be defamatory because of what it implies or infers. The defamatory meaning is often insinuated and can often be read between the lines. This is more easily done when a post is derogatory.
Allegations and rumours — The report or repetition of an allegation or rumour may be defamatory. By posting the allegation or rumour you may give it credence and may imply that it is true. This may be so even if you simply state that you are only repeating the allegation or rumour.
Contradictions — If you attempt to qualify a potentially defamatory statement with a statement such as “but there is nothing to prove that it is true” – this will not necessarily prevent the statement from being defamatory. The court will look at the publication as a whole.
Humour — A post which is humorous can still be defamatory. It does not matter what you intend the words to mean, or that a post was intended only as a joke.
The following categories of defamatory imputations provide some guidance as to what may be defamatory:
- allegations of criminality, including corruption, bribery or conspiracy;
- dishonesty, deceitful conduct including stealing and fraud;
- misconduct, misuse of position, abuse of office, unethical behaviour, conflicts of interest or bias; and
- incompetence, unprofessional behaviour, negligence, inability to carry out one’s responsibilities with due care and skill.
Australia does not have the same tradition of free speech as there is in the United States. Plaintiffs can pursue technical causes of action for defamation, at the lower end of the scale, that are nevertheless very expensive for all parties concerned.
Who could your posts defame?
Most corporations cannot be defamed.
The exception is corporations with fewer than 10 employees, that are not related to another corporation. Many Australian companies fall within this category.
Individuals, including directors, management, officers and shareholders can be defamed and commence defamation proceedings.
You do not need to identify these people by name in order to defame them. For example, if your post identifies someone by name or title, such as ‘the CEO of Company X’ then that might be enough.
If your post refers to “the directors of Company X”, or ‘the management of Company X’ each of them may have a cause of action against you.
Making potentially defamatory statements about small companies or individuals is can expose you to defamation proceedings against you.
Listed companies and corporate governance
Under Australian law, companies (with ten or more employees) generally cannot instigate legal action as defamation happens to individuals and not to companies.
Using company resources and shareholder funds for the private benefit of employees or directors is likely to attract corporate governance issues with shareholders and regulators. ATO rulings state legal expenses incurred in taking defamation actions are not deductable under section 8-1 of the ITAA (Income Tax Assessment Act 1997) as they are considered to be insufficiently connected with income earning activities and are private or capital in nature.
Management, company auditors and directors should be aware of the various FBT, accounting, reporting and legislative requirements prior to incurring costs that the company has no legal financial claim or rights to nor obligation for. For instance, the provision of legal services provided to employees constitute the provision of a fringe benefit pursuant to subsection 136(1) of the FBTAA (Fringe Benefit Tax Assessment Act 1986).
Should you believe you have been defamed on HotCopper the most effective method is for the defamed (individual) to make contact via firstname.lastname@example.org and the matter will be investigated immediately.
There are a number of defences to defamation, one of which is truth. It is important to understand that it is the truth of the imputation that must be proved, not the truth of the words used.
There are other defences such as qualified position, fair comment or honest opinion. These can be very technical, and the best approach is to avoid making defamatory statements in the first place.
Please see the following links for examples of legal proceedings relating to defamatory statements made online:
- Leech v Green & Gold Energy Pty Ltd  NSWSC 999 — posting defamatory comments in online chat forums.
- Khochaiche v Kamaleddine  NSWSC 1219 — anonymous emails sent to parents attacking the plaintiff’s management of a childcare centre.