[AusNOG] A thoughtful note
Tony de Francesco
tonyd at pue.com.au
Wed Jul 15 09:50:09 EST 2015
According to legal advice provided to me in 2012 (in my best non-legal
jargon):
Defamation involves making "false" statements, verbal or written, about them
which spoils their good reputation, which makes people want to avoid them or
which hurts them in their work or their profession.
To defame someone, you do not have to make up false things yourself. You
might defame a person by repeating or replaying words spoken by someone
else.
Whilst it is common for an individual to bring legal action after perceived
defamation, it is rare for a corporation or business to be able to sue in
relation to defamation as the national Uniform Defamation Laws prevent
corporations with more than 10 staff from initiating legal action of
defamation.
However, be warned that individuals or groups of individuals employed by or
associated with a corporation - such as company directors, CEOs or
managers - can still sue, if they are identified by the publication.
The defamatory statements also have to have an audience that is large enough
for it to be considered a statement to the community in general and
privately written communications are not usually considered to be defamatory
by nature because they do not reach a wide enough audience to be thought of
as being defamatory.
Under the national Uniform Defamation Laws there is a defence if the
defendant can prove that the defamatory imputations are "substantially"
true.
There is also the defence of "honest opinion", in which you do not need to
prove the truth of your comment. In some cases this is not possible,
especially if it is an opinion rather than a fact. You only need to convince
the judge or jury that your comments were your honestly-held opinion and
that it was:
• clearly a matter of opinion and not a statement of fact, and
• it related to a matter of public interest and
• it was based on ‘proper material’ (i.e. substantially true or based on
privileged material)
The defence can be defeated if the plaintiff can prove that the opinion was
not honestly held
The acts of each state contain Schedules of bodies and publications to which
absolute privilege apply. In Victoria you can find the Act and Schedules at:
http://www.austlii.edu.au/au/legis/vic/consol_act/da200599.txt
The NSW Act is very similar at:
http://www.austlii.edu.au/cgi-bin/download.cgi/download/au/legis/nsw/consol_act/da200599.rtf
Tony
-----Original Message-----
From: AusNOG [mailto:ausnog-bounces at lists.ausnog.net] On Behalf Of Shane
Chrisp
Sent: Wednesday, 15 July 2015 1:14 AM
To: ausnog at lists.ausnog.net
Subject: Re: [AusNOG] A thoughtful note
On 14/07/15 23:09, Skeeve Stevens wrote:
And for those interested in some light reading on defamation when someone
published facts, look up T3 v McNicol case. Yes it cost a lot to defend, but
the truth won out.
> It should be pointed out that this is civil litigation. It costs as
> much (if not more) to pursue it as it does to defend against it. Very
> few lawyers will take a defamation cases on contingency.
>
>
> ...Skeeve
>
>
> --
>
> Skeeve Stevens - The ISP Guy - Internet Provider SME
>
> Email: skeeve at theispguy.com <mailto:skeeve at theispguy.com> ; Cell:
> +61(0)414 753 383
>
> Skype: skeeve; Blog: TheISPGuy.com <http://theispguy.com/> ; Facebook:
> TheISPGuy <https://www.facebook.com/theispguy>
>
> Linkedin: /in/skeeve <http://www.linkedin.com/in/skeeve> ; Expert360:
> Profile <https://expert360.com/profile/d54a9>
>
>
> On Wed, Jul 15, 2015 at 12:25 AM, Paul Wilkins
> <paulwilkins369 at gmail.com <mailto:paulwilkins369 at gmail.com>> wrote:
>
> >>Do you know that a fact, does not consitute defamation no matter
> how much you may not like it?
>
> Shane,
> Please don't confuse US law with Australian law. Believe all you
> like truth is an absolute defence, but if it gets to court, you'll
> find actual damage to reputation, regardless of truth, will cost an
> arm and a leg. It amuses me that so much of what is general
> perception of the law emanates from US posters.
>
> (I am not a lawyer. This is not expert opinion)
>
> Paul Wilkins
>
>
>
> On 14 July 2015 at 18:14, Shane Chrisp <shane at 2000cn.com.au
> <mailto:shane at 2000cn.com.au>> wrote:
>
> On 14/07/15 16:06, Mark Newton wrote:
>
> I read your post, and all I could come up with was, "Huh"?
> Dont know what you have been reading, but I dont think it was
> the thread I think you are referring to. All I have seen posted
> is information which is based on fact. Do you know that a fact,
> does not consitute defamation no matter how much you may not
> like it?
>
> Anyway, there are list operators who can make these decisions
> without everyone else trying to do their jobs for them every
> time they think someone or something has over stepped, so why
> not let them do it.
>
> Shane
>
>
>
> Making public accusations of criminality is actionable if,
> after due consideration,
> it turns out that your speculation about who this person is,
> what they have been
> accused of doing, and whether the accusations have merit, is
> revealed to be wrong.
>
> It’s also pretty aggressively reckless to use this forum to
> kick over these coals
> without knowing whether the AusNOG Directors’ insurance
> policies cover defamation.
> Shoot your mouth off, and who might lose their house is
> anyone’s guess, eh?
>
> I suspect AusNOG is not the place to make these accusations.
> Perhaps if you want
> to expose mailing list operators like that, do it on a list
> that you, personally,
> operate.
>
> "Stop thread?"
>
> - mark
>
>
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--
Regards
Shane Chrisp
2000 Computers & Networks Pty Ltd
Suite 6, 49 Hay St, Subiaco, WA 6008
Ph 08 6298 7391 Fx 08 6298 7393
Mb 0412 409 856
Email shane at 2000cn.com.au
Web http://www.2000cn.com.au
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