[AusNOG] A thoughtful note

Greg Lipschitz Greg at thesummitgroup.com.au
Wed Jul 15 10:06:56 EST 2015 

My non legal take on it ....

My mummy always told me, if you don't have anything nice to say about someone keep your mouth shut :P



Greg Lipschitz | Director | The Summit Group
E: Greg at thesummitgroup.com.au  W: www.thesummitgroup.com.au
The Summit Group (Australia) Pty Ltd | P: 1300 049 749 | Level 1, 39 Railway Road, Blackburn  VIC  3130
The Summit Group (USA) LLC | P: 321 216 3844 | Suite 561, 40E Main Street, Newmark  DE 19711
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-----Original Message-----
From: AusNOG [mailto:ausnog-bounces at lists.ausnog.net] On Behalf Of Tony de Francesco
Sent: Wednesday, 15 July 2015 9:50 AM
To: ausnog at lists.ausnog.net
Subject: Re: [AusNOG] A thoughtful note

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
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