Reply to thread

Message: <blockquote data-quote="Atticus_of_Amber" data-source="post: 97955" data-attributes="member: 2683">Legal positionI put this on the thread earlier today and then thought better of it. Now I've thought better about thinking better of it, if you get my drift. <img src="https://cdn.jsdelivr.net/joypixels/assets/8.0/png/unicode/64/1f642.png" class="smilie smilie--emoji" loading="lazy" width="64" height="64" alt=":)" title="Smile    :)"  data-smilie="1"data-shortname=":)" />I'd be interested in any American lawyers views on the differences between Australian and US defamation law.I repeat, this is not legal advice. It is merely a description of what the "template" of the law in common law world is.Anyway, here's what I wrote:Ok, first, I repeat the "this is not legal advice, but is purely for informational/education purposes" disclaimer that the other lawyers on here have posted. Second, I'm an Australian lawyer. What follows is an outline of the structure of the tort of defamation at common law in the British common law world (Australia, Britain, Canada, New Zealand, parts of the West Indies, Malaysia, Singapore, Hong Kong, etc). While US common law is based on British common law, it has diverged a lot over the last 200 years or so. Moreover, even in the common law world, a lot of jurisdictions have overridden common law of defamation by legislation. Nevertheless, this is the basic structure to start with. 1. To defame someone you need to do two things: (a) say something defamatory; and (b) publish it. (a) A statement is defamatory if it would lower the plaintiff's reputation in the eyes of a significant section of the community. The test used to be if it would lower the plaintiff's reputation in the eyes of "right thinking people", but that's changed in most places to the neutral "significant sector". (b) Publication means communication to a third party, i.e. to someone other than the plaintiff. So telling someone they're a thief to their face when no-one else is listening is not defamatory. There used to be a distinction between written defamation (libel) and verbal defamation (slander) with slightly different rules applying to each, but that's changed in most places now. So, if you say something about someone to someone else that might lower their reputation in the eyes of a significant sector of the community, you've defamed them. "But that happens all the time!" you say. Yes. You see, all the real action in defamation is in the defenses. 3. The defence of Justification (a.k.a. Truth): If the defendant can prove, on the "balance of probabilities" (I think the test in the US is called "the preponderance of the evidence"), that what he said is true, then he has an absolute defence. Note that opinions must be proven as well to get this defence: the truth has to meet the "sting" of the accusation. In other words, its very hard to defend opinions with this defence, but that's what the defence of "fair comment" is for (see below). 4. The defence of Fair Comment on true facts: If the defendant statement listed a series of facts, which he can prove, and then makes a comment or expresses an opinion based on those facts, then that comment or opinion is protected by the defence of fair comment. To the extend that the statement resembles the classic "Fact A, fact, B, fact C; thus I think the President is a moron" formula, it is likely to be covered by the defence. The less it resembles this form, the less likely it is to be protected. Thus, saying "in my opinion" is not a guarantee of a defence. 5. The defence of Absolute Privilege: Anything said in Parliament or the courts in evidence or submissions is immune from a suit of defamation. (Note these institutions generally have their own internal mechanisms for dealing with abuse of this privilege.) 6. The defence of Qualified Privilege: This is the really interesting one. You can defame someone if you and your listener have a "community of interest" in the conversation. Huh? Where you have an legitimate interest or duty in saying something and the listener had a legitimate interest or duty in hearing it. Double huh? Since these common law rules were worked out inductively by example to begin with, I think the best way of explaining this is by an example. D and P works for X. D genuinely suspects P of stealing from X. In fact P is innocent, but D didn't know this. D tells X. If P sues, D will be protected by the defence of qualified privilege because D and X had a "community of interest" - D had an interest in telling his employer about suspected theft and X had an interest in hearing it. The privilege can be lost if there is excessive publication (D told a whole bunch of people other than X) or malice, meaning knowing what you are saying is untrue or not having reasonable grounds for believing it is true. Cutting across this are the various free speech defences based on Bills of Rights in various jurisdictions. Moral where these rules apply: Don't say something nasty about someone unless you know it's true and can prove it. Or, if you have suspicions which you want to air in public, back those suspicions up as an opinion based on verifiable facts which you point to in support of your opinion. If you have suspicions you can't back up like this, only reveal them to people in a "community of interest situation". This last can be tricky unless its one of the classic employer/employee, etc situations. All this may be different if the someone you are going to be nasty about is a public figure, depending on where you live (my understanding is that in the US public figures are pretty much fair game unless you actually know that what you are saying is untrue). If in doubt, get legal advice.</blockquote>

Verification