CONSIDERING DEFAMATION AND THE ARTS

'.If it was made in public or to one other person then there is publication.'

What is the relevance of defamation to the readers of this magazine, you may well ask? The relevance is that often people will threaten defamation proceedings against artists, critics, managers, or board members of craft organisations because of comments in meetings or reviews. Knowledge of what constitutes a defamatory statement in the eyes of the law, plus knowledge of the defences, and of the costs is helpful in defusing or avoiding these problem situations in practice.

"They actually called me a whore!" said Eva Peron. The Italian Admiral replied, "It's an easy mistake, I've had that problem too, I'm still called an admiral even though I gave up the sal long ago."

These words come from the libretto for the musical Evita by Andrew Lloyd Webber, but they illustrate the focal issues of this article: what does defamation mean - and what is the term meant to protect? Has Eva Peron been defamed by being called a whore? Has the admiral been defamed because he is still called an admiral?

Andrew Ettingshausen, a prominent footballer, was defamed when HQ magazine published a full frontal photograph of him in the nude without his permission.yet Jason Donovan would not be defamed by a newspaper merely saying he was gay. Accusations of defamation are very prevalent.

To answer the second focus first, defamation recognises an individual or a company has a protectable interest in their reputation against unjustified criticism. Defamation means words or acts that injure the reputation of another by exposing that person to hatred, contempt or ridicule (Parameter versus Coupland) or tend to lower the plaintiff in the estimation of right-thinking members of society generally (Sim verus Stretch).

Defamation has been divided historically as slander for verbal or spoken statements, and libel for written statements. This historic distinction has been abolished in most states by statues on defamation.

To be defamed three things must be proved:

1. A defamatory matter has existed in writing or verbally
2. Reference to the plaintiff was made
3. Publication of the statement occurred

The matter complained of may be written or oral, arising in a myriad of ways through the use of a caricature advertisement, effigy, gestures, photography, sign writing in the sky or even by hanging a red light outside someone's house. The test for determining whether the material IS defamatory is to determine whether a person of average intelligence could reasonably interpret the matter as bringing the defamed person's reputation into disrepute.

The context in which the words are published is important. The defamed person may demonstrate that apparently innocent words are defamatory in the circumstances of publication or because of a secondary innuendo that the words have. In the case of Eva Peron, calling her a whore may easily be considered to bring her into disrepute. The defamatory imputation in the Ettingshausen case was that he had permitted the photograph of him to be published in a periodical with a widespread readership, and this meant he was unfit to be a schools and junior development officer for the NSW Rugby League - because of this photograph.

The second element is that the defamatory material must refer to the defamed person or can be reasonably assumed to refer to the defamed person. It is not necessary that the defendant intended to refer to or defame the plaintiff. A reference by name may be actionable by another person of the same name, and a reference is defamatory even though it requires a reference to facts outside the knowledge of the defendant.

Defamation can also be made against a class or group of people and any member of that group can bring the action. A photograph of the person was sufficient for Andrew Ettingshausen to prove this element, and Eva Peron would be able to show the words used against her satisfied this element as well.

The third element is that a defamatory remark made directly to the defamed person is not actionable as defamation, unless it is published by a third party. In the Andrew Ettingshausen case, the publication to the circulation of HQ magazine was easy proof of this element. Publication to a single third party is sufficient for there to be defamation and sufficient to establish harm to reputation of the plaintiff.

If the statement at the beginning of this article was made to Eva Peron's face, without any third party present, then there is no defamation as there is not publication, but if it was made in public or to one other person then there is publication.

There is an exception to this rule in that no publication occurs if the material is unlawfully obtained, for example by intercepting a letter conveying the defamatory statement directly to the defamed person.

These three elements must be satisfied for there to be defamation. However, the law recognises that there are some defences to actions for defamation, as the implied right of freedom of speech would not exist if the laws of defamation were taken too far.

The available defences include:

1. Consent by the defamed person to the publication (this was argued in Ettingshausen case but lost)
2. Truth or justification with the additional requirement that it is for the public benefit or interest in New South Wales and Queensland
3. Fair comment and privilege - either as absolute privilege in the case of statements in Parliament, or those of qualified privilege which can be lost if the party proves that the defendant acted out of malice

These defences have caused much debate about the relevance of defamation in law and a review of the laws in New South Wales has heard submissions that public figures such as sport stars, politicians and the like should only succeed if they can show that the publisher has acted with malice. Theses changes are still being debated at the time of writing.

The great problem with the issue of defamation has been the award of astronomical sums to defamed persons. The law recognises that the defamed person is to be compensated for the harm to their reputation, but the figures often appear out of proportion to the harm. This results in an appeal to a higher court to attempt to overrule the decision, or at least reduce the damages award. This has happened in the Ettingshausen case where the original award of $350,000 was reduced to $100,000 on appeal.

This is another issue which is also being examined, but the warning is: be careful with such statements - as the awards are generally high.