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Richard:

Now I found this story astonishing. A Queensland court has ordered a woman to pay her ex-boyfriend $10,000 for defaming him during a complaint she made about him to a single officer. I had no idea that that could classify as defamation. Just a one-on-one conversation. Joining me now to break it down and to help us avoid a defamation lawsuit in the future if you’re having a conversation with someone, is a commercial lawyer and principal of Lynn & Brown Lawyers, Steven Brown. Good morning.

Steven Brown:

Good morning, Richard and listeners.

Richard:

First of all, what a fascinating case. Do we know what was said or what actually happened here?

Steven Brown:

Yeah, so the case is brought in the Queensland District Court and it involved two… So the plaintiff was the ex-boyfriend of the defendant and he alleged that she had defamed him on two occasions, once when she rang and made a complaint to, as you say, a single senior constable in the New South Wales Police Force, and then on another occasion she had a phone conversation with a lawyer that was acting for her ex-boyfriend’s ex-spouse in family court proceedings.

Richard:

Right.

Steven Brown:

The court only found though that the conversation with the police officer was defamatory.

Richard:

So how does it become defamatory? Working in radio, we’re warned about these things all the time and you’ve got to be careful in so many areas, as you’d be aware working in law, but I thought it was only defamatory if I was saying it to a group or it was published. I never thought you could be defaming someone or it could be defamatory if you’re having a one-on-one conversation. How is this possible?

Steven Brown:

Yeah, so there are a couple of elements that are required for defamation. The first is that what you say or write about someone makes someone else see them in a worse light, so makes them think worse of them, and that makes whatever you said or wrote defamatory. The second element is a publication, as you’ve suggested. But publication can be if you say it to anyone other than the person you’re saying it about or write it online in a letter, in a newspaper, in a flyer that you put out, that makes it defamatory.

Richard:

So I suppose in this case, is the case still on appeal as well? Because I reckon I’d be appealing.

Steven Brown:

So her lawyers have said that they are appealing it. It is quite unique, the fact that it was only made to one person. And the thing that makes this defamatory is that the court found that what she said to the police officer wasn’t a real complaint. She didn’t have a real substance for making a complaint and that what she was saying was more rumor and innuendo and had no actual factual substance to it, and therefore there wasn’t a valid legal reason for her to make the complaint to the police officer and that made it therefore… There’s certain defenses to defamation and her lawyers have tried to argue that it was a privileged conversation, because it was for the purposes of seeking out justice in a situation. But the court found that wasn’t the case, because there wasn’t actually any substance to the complaint she made to the police officer.

Richard:

Right. And it being published would be the report that the officers would have to write and that would go against his name and therefore questioning his character.

Steven Brown:

Yeah. The gentleman involved is a quite high-profile business person and traveled to New South Wales regularly for work. And what they found is the publication was just her telling the police officer. So that was the actual publication, that was not the police officer writing any report about it, but just her saying it to the police officer. And what the court found is that what she said about the plaintiff made the police officer think worse of him and therefore defamed him.

What becomes really tricky in a situation where it’s only said to one person is, well, what are the damages? But what the court found is that she did it for vengeance and therefore it aggravated the circumstances in which the defamation occurred. And so he got aggravated damages. The damages are really minimal. It’s $10,000 that he got awarded. So the legal costs would far outweigh what he’s actually got for it. So why you would do this? He’s a rich man. She obviously wanted to make a point here and to clear his name because it did have ramifications potentially for him in family court proceedings, because the comments she made would make someone think that potentially he was someone that didn’t look after his kids well and was domestically violent.

Richard:

Broadly speaking now, what are some other situations in life where people might be having a conversation or these days you might be online and on your social media account, what are some traps that people might need to be aware of or a situation where they think they’re just talking to somebody in a confidential conversation and you’re just running your mouth or you might be speaking your opinion or venting or whatever expression you might want to say, but what are some situations where you might warn people?

Steven Brown:

Yeah. Well, we’ve seen cases in recent years of people on neighborhood Facebook groups making comments about their neighbors and essentially having judgements against them for defamation. You think sending a text message to your mate or it might be in a group chat on WhatsApp or something like that, that could be considered to be defamation if you say something in there that makes people think worse of someone, and you don’t have the substance of truth to defend you. So lots of different… A conversation in a coffee shop with a friend, you bad mouth another person, you don’t know that they’re actually friends with that person. They could decide to tell that person what you were saying about them and they could be suing you for defamation next week.

Richard:

How many of these cases do we see on, say a Twitter, for example, where people feel like they’re keyboard warriors, no one’s going to know who you are? How easy is it to hide when you’re on social media?

Steven Brown:

Yeah, look, to some degree and what we find is that a lot of these big social media companies are very reluctant to give authorities information very freely. So, that is one of the tricky things. If it is in that regard and they’re using a pseudonym, it can be tricky. You can get things like pre-action discovery to effectively try to subpoena documents and material and information from someone like Twitter or Facebook to try and find out who the person behind the comment is.

Richard:

Fascinating stuff. Commercial lawyer, and principal of Lynn & Brown Lawyers, Steven Brown, thank you so much for your time. I had no idea that you could be sued for defamation in a one-on-one conversation.

Steven Brown:

And let’s see how this one plays out, Richard. It could be very interesting on appeal.

Richard:

Absolutely. If more comes from it, we will definitely be in touch. Steven Brown.

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