Generally, gossip and rumours can often be savage and very hurtful to the subject of them. But when do gossip and rumours become an actionable defamation claim?
For the gossip or rumour to amount to defamation, the following elements of defamation must be present in the publication:
- It must be defamatory;
- It must identify the Plaintiff; and
- It must have been communicated to a third party.
What if it is True?
The most commonly known and utilised defence is of justification, where the statements made are true. The publisher would have to prove that all the imputations of the statement are true in order to use the defence. Other defences may apply, depending on the circumstances of the statement. We have written articles on all the defences available to a defamation claim. Please refer to our other articles for more information on the defences to a defamation claim.
But Someone Else Told Me
Republication of a defamatory statement can still amount to defamation. For example, if you said to another person “Have you heard the rumour that…” you can still be liable as a primary publisher of the defamatory material. The defamatory imputations to such a statement are numerous, for example, the subject of the rumour has some attribute worthy of a rumour or gossip, the rumour has some truth to it, the rumour could reasonably be believed to be true, the maker of statement believes in the truth of the statement, and the subject of the rumour should be shunned, avoided, and ridiculed by either the public or peers. Each person who publishes the defamatory material will be liable as a Defendant to a defamation claim, regardless, if he or she is simply repeating what someone else said to him or her.
Even if you made a statement such as “A told me that B did x, y, z….”, this can still amount to publication of defamatory matter because the imputation is that what A told you is that the statement that you are repeating is true. In that context you have become a primary publisher of defamatory material and can be liable as a Defendant.
Even if you stated to others “I heard x, y, z….”, you can still be liable for defamation as the imputation of making such a statement is that it is true.
Endorsing others’ comments can also make you a Defendant to a defamation claim. This can happen easily on social media sites such as Facebook. Simply commenting on another person’s post, sharing, liking, or even using emojis in response to another person’s comment or post can amount to defamation. For more information about this please see our article on “Defamation and Social Media”.
I Was Only Joking
Gossip and rumours can sometimes be statements about a person, said in jest. However, this can also amount to defamation.
How it Affects People
Gossip and rumours are a normal part of living within a community. People talk about other people and make comments. However, the Australian Government has recognized that poor mental health is costing the Australian Taxpayer and employers increasingly large sums of money. Mental health is the single most costly form of ill-health to the Australian Government. Charities such as “Are you OK?” are also forming in response to poor mental health that has led some people to commit suicide after being the subject of internet “trolls”.
What Can I do?
If you are the subject of gossip or rumours, there are legal remedies available to you. For example, if you are a child and the gossip or rumours are being spread via electronic means by either an adult or another child you can make a complaint to the Australian e-safety Commissioner who can investigate the matter and issue notices to the perpetrators to force them to remove offending material from the internet and stop them from further conduct. The Commissioner has powers to issue fines to the perpetrators as well.
However, gossip and rumours are often actionable defamation claims which you can pursue through a lawyer, regardless of whether you are a child or an adult. The national, uniform defamation laws in Australia also provide methods for resolving defamation claims without having to go to Court. Financial compensation for the gossip and rumours may be the best remedy for a Plaintiff to not only vindicate them but to also stop the perpetrators. An urgent injunction may also be required. Please see our articles on “Interlocutory Proceedings”.
What is the Hardest Part?
The biggest hurdle that parties to a defamation claim face is evidence supporting each parties’ case. The first thing that a lawyer will ask either a Plaintiff or Defendant is what evidence can you tender in support of your case. This applies equally to Plaintiffs and Defendants. A Defendant who wishes to argue truth as his or her defence actually has to prove that in a Court of law with the use of witnesses providing oral evidence and documents. In defamation law, there is a presumption that material is false unless the Defendant proves otherwise, however, it is also for the Plaintiff to prove that the elements of a defamation claim exist. It is therefore, somewhat of an easier hurdle for Plaintiff’s to surmount than for Defendants.
A claim of defamation is easier to run if there is evidence that a jury or judge sitting alone can examine such as printouts from social media posts, film of a television broadcast or photographs or articles from a newspaper or magazine. Therefore, a defamation claim run simply on oral gossip and rumours may prove to be very difficult for a Plaintiff if he or she does not have witnesses willing to testify in support of the claim.
There is also the added difficulty of costs. Lawyers can be expensive given the amount of time needed to formulate a claim or a defence. If the matter goes to Court the successful party is usually awarded costs, however, the costs are usually awarded on the “standard basis”, that is, in accordance with Court scales that are usually much less than what lawyers actually charge. Indemnity costs can be awarded which cover the actual cost of the party’s lawyers but an award of indemnity costs in a defamation claim is rare.
If you are an employer, it is good to foster a culture that frowns upon gossip and rumours as the cost can be quite great with the subject of the gossip and rumours taking leave and possibly making a worker’s compensation claim due workplace stress if the situation gets to that level. Disharmony in the workplace in turn reduces productivity.
Magazines do it all the time!
So, you may be wondering how do gossip columnists and woman’s magazines get away with the content of some of their articles? The answer is that they don’t in many cases. Media companies are responsible for many of the largest awards of compensation for defamation claims, not only in Australia, but the world. Journalists and broadcasters are subject to codes of ethics and complaints can be made to various organisations within Australia such as the Australian Press Council for newspaper and magazine articles and the Australian Communications and Media Authority for radio and television broadcasts.
What Next?
So, if you are the subject of harmful gossip and/or rumours and wish to consider a defamation claim as a result you will need the following things:
- Evidence of the alleged defamatory statements;
- Evidence that the alleged defamatory statements are false;
- Evidence of loss and damage, for example, a medical report for personal injury and an accountant’s report for economic loss; and
- Funds to pay a lawyer.
Harris Defamation Lawyers offer a fixed-fee consultation to assess your claim or your defence.
