It is quite common for us to be consulted regarding disputes involving defamation in a body corporate context. The ingredients for conflict that are present in community title schemes – strangers living together in close proximity, the sharing of facilities, members of the body corporate having different priorities in respect of the management of the body corporate, competition for committee positions, and so on – coupled with the ease of communication facilitated by email and social media, create an environment conducive to the publishing of insulting, and even defamatory, comments.
Many people may be of the view that defamation is not relevant to life in a community title scheme and only arises in the context of high profile individuals and mass publication of defamatory statements, such as in newspapers. However, that is not the case.
In Queensland, the law relating to defamation arises from a combination of the general law and the Defamation Act 2005.
Put simply, a cause of action in defamation will arise where someone makes a statement that is defamatory about someone else, and publishes that statement.
A statement will be defamatory if the person’s reputation has been damaged or could reasonably be considered at risk of damage by the statement.
The threshold of what amounts to publishing is quite low – merely making the statement to a third party amounts to publication. Publication can take the form of (without limitation), online media, writings, drawings and speech.
Where a claim of defamation succeeds, the aggrieved party may receive damages as determined by the Court. The damages must bear an appropriate and rational relationship to the harm sustained by the aggrieved party. Whilst many factors are relevant to the assessment of damages, broadly speaking the Court will look to impose a sum of damages that reflects:
- the seriousness of the defamatory statements,
- the extent of the publication, and
- the harm, loss and damages suffered by the aggrieved party.
Where a claim of defamation succeeds, usually the aggrieved party would also obtain an order that the other party pay the aggrieved party’s legal costs.
A number of defences are available to a claim of defamation, including (without limitation) the defences of:
- publication of matter concerning issue of public interest,
- qualified privilege, and
- honest opinion.
For these defences to apply, it is up to the party who is alleged to have published the defamatory comments to prove each of the specific elements of the relevant defence. It is not enough to simply claim that those defences apply – they must be proved.
Issuing a Concerns Notice
Where a party believes he or she has been defamed, the first step under the Defamation Act is to issue a concerns notice to the other party. A concerns notice is a notice that sets out the details of the alleged defamation and must contain the specific information prescribed by the Defamation Act. Generally, a concerns notice will also invite the other party to make amends for the defamation. Proceedings for defamation cannot be commenced unless a concerns notice has been issued and has expired.
Defamation in Body Corporate Scenarios
In a body corporate context, any routine form of communication could give rise to allegations of defamation. Some recent examples we are aware of include:
- The placing of a circular in owners’ letterboxes campaigning for a fresh committee, in circumstances where the circular contained comments about the incumbent committee;
- The sending of an email by a body corporate contractor to members of the committee making comments about a committee member;
- The making of a comment by an owner on a building’s Facebook page;
- The sending of an email by a committee member to a group of other owners making a comment about another owner; and
- Comments made at a committee meeting which were subsequently minuted verbatim and then sent to all owners in the context of the routine distribution of minutes.
Any one of those situations had the potential to result in a material damages payment to the aggrieved party. It is unfortunately not uncommon for debates between some individuals in a body corporate context to become quite emotional, often where the issues in dispute certainly do not justify such emotional conflict. Individuals should take great care not to make any comments or publish any material that is defamatory because comments made in the heat of the moment can carry financial consequences. The nature of email and other online communications can encourage individuals to make comments by those means that they would never make when speaking to someone in person – if you are not prepared to say something to someone in person, you should not put it in writing.
Obtain Legal Advice
The law of defamation is highly regulated and strict time limits apply both in starting and defending actions. If you are concerned that you have been defamed, or if you have received a concerns notice, you should seek legal advice.
If you have any questions about defamation, please do not hesitate to contact us for more information.