By Paul Anderson
Lawyer Aditya Vasudevan was the guest presenter at an online presentation hosted by the Arts Law Centre of Australia (Arts Law) for EdNSW on 6 September 2022. Aditya is a solicitor at Arts Law where he advises writers and other practitioners on a range of legal matters. He presented a comprehensive guide to defamation law and provided tips for editors on how to manage and reduce the risk of defamation in our work.
The basics
There are three basic elements: the material is published to a third person, it identifies the person, and it is defamatory.
- Publication is a broad element and easily satisfied. It can be any form of communication and there is no minimum number of recipients. It does not have to be published to the world at large – it could be published to just one person – but it must be received. Although the burden is usually on the author or publishing house, as an editor you could be counted as a “publisher” and potentially liable. This will depend on what your contract says and how closely associated you are in the creation of the work.
- The person does not have to be named. They can be identifiable in other ways, including pseudonyms.
- When thinking about whether something is defamatory, read the material like a “normal” person (and between the lines). How unflattering is it? Does it lower the person’s reputation? Does it hold them up to ridicule? Would it lead others to shun or avoid them?
The threshold is higher since law reform in 2021. Plaintiffs must prove they have suffered, or could suffer, “serious harm” as a result of publication.
The legal process
Living people can sue for defamation but generally the dead cannot be defamed. Most corporations cannot sue, with exceptions such as not-for-profits and organisations with fewer than 10 employees. A claimant must issue a Concerns Notice which lists the defamatory imputations. There is then either a negotiation or it goes to court, and there is a limitation period: the claim has to be brought within one year of the publication date of the work.
Common defences
Aditya explained the four most common defences, which are centred around free speech.
- Truth (substantial and contextual)
- Honest opinion
- Public interest
- Qualified privilege (common law and statutory).
“Public interest” is a new defence which broadens aspects of qualified privilege. Other defences of note are “absolute privilege” and “innocent dissemination”.
Practical tools for editors
Taking reasonable steps is often enough to make someone not pursue a defamation claim because to do so can be costly and burdensome. Here are some of Aditya’s tips.
- Always start by interrogating the utility of the inflammatory material. What artistic purpose does it serve?
- Minimise identifying information. Use pseudonyms where appropriate and statements that information has been changed to avoid disclosing people’s identities.
- Ask the author for the source material and how closely it is to provable facts.
- Make sure opinions are worded like opinions, and cautiously.
- Use disclaimers that are appropriate in certain types of work, for example, historical fiction and true crime. The courts understand that audiences are not naïve – they are aware that works inspired by true stories are not absolutely the truth. The simpler and more realistic a disclaimer (rather than legalistic) the more likely it is to be effective.
Contracts and insurance
Warranties and indemnities in the contract can protect you. An author or publishing house may warrant that a manuscript is not defamatory. An indemnity is a commitment by them to pay for any losses or costs caused by that warranty being incorrect. It does not get rid of your liability; it just transfers the financial risk. Insurance may also be useful, especially where you are obligated to provide warranty. Defamation risk is not normally covered under standard insurance policies, or it may be an exclusion. Your options are then to either self-insure (which may be hard for freelancers) or to buy specific insurance. This might be possible as an extension to other coverage you may have but the excess can be prohibitively large – talk to an insurance broker and get professional legal advice.
Emily Phipps, Arts Law’s communications manager, assisted with the audience’s questions, reading these out from the chat for Aditya to answer. They concluded the webinar with instructions on how to get further help from Arts Law. Use their online application form to submit legal queries or their email address (artslaw@artslaw.com.au) for general enquiries.