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Mice Net : August 2008
mouth! watch your Matt CrouCh says if you don’t watch your mouth you could land yourself in hot water. T he spoken word is so instantaneous and so relatively effortless to create that sometimes our mouths work faster than our brains. Making a gaff can just be downright embarrassing. Forgetting to mention an event’s sponsor, for example, or mentioning the sponsor’s competitor in the wrong context would be embarrassing – and it might also cost you business or a valued business relationship. But everyone in the meetings and events sector should also be aware that sometimes your mouth can get you into legal hot water. At a conference recently I overheard one delegate calling another “a self-important, petty, dishonest little s****!” Another delegate in attendance (colleague or friend of the first speaker) piped up with “Yes he is, isn’t he, but you’d better not defame him like that – he’s just the type to sue you!” What’s going on here, legally? Is it really defamation? Could the target of the comments really sue for this? And what about the second fellow’s words – could they be a problem? There is a lot of confusion about defamation. In simple terms, I defame you if I say (or write) something about you to a third person that damages your reputation. Merely insulting someone in private, one-to-one, is not defamation because there is no third person, and no damage to reputation. If you are defamed, you can sue the person who made the disparaging remarks for compensation (“damages”) for your injured reputation. Under the recently introduced “uniform” defamation laws you will be limited to $250,000 for pure damage to your reputation, unless you can persuade the court that the defamation was “aggravated” or particularly grievous. You might also be entitled to “economic loss” if you can establish that you suffered financially as a result of the damage to your reputation. So, was the first remark that I overheard at the conference defamatory? It may well have been. Even though the remark was made by the maker of the insult to the “victim” of it, it was uttered loudly – with the obvious intent that it should be overheard by others such as myself, and at least the maker’s friend, though that would be a matter of fact to be proven by the evidence. As the court has put it - a remark is defamatory if it is “of a kind likely to lead ordinary decent folk to think less of the person 70 mice.net about whom it is made”. Clearly, a statement that this person is “self-important, petty and dishonest” and a “s***”, would be likely to make others think less of him. There are numerous defences to defamation, including: • The defence of justification – if the maker of the statement can prove the statement was substantially true. As expressions of opinion, in our example this defence is unlikely to apply; • The defence of honest opinion – if the maker proves that the statement was an expression of opinion of the maker rather than a statement of fact, that the opinion related to a matter of public interest, and is properly based. In our example the statement was most likely a statement of opinion; but whether the other elements of this defence could be established is doubtful; and • The defence of triviality – if the maker proves that the statement was made in circumstances that mean that the victim was unlikely to suffer harm. In our case this defence may well apply. The context will be important – the words were uttered at a bar at which numerous delegates were socialising after the final session of the conference. On one hand, it is tempting to argue that an insult hurled in a bar, fueled by alcohol and in a raucous environment, is trivial in its effect. On the other hand, the victim might argue that, surrounded by his peers at a conference social function, the damage to his reputation is likely to be compounded. And the maker’s friend? He has affirmed the remarks, and added his own little observation about the litigious tendencies of the target (as if being litigious was a criticism!). All jokes aside – if you re-publish a defamatory remark you too can be guilty of defamation, even though you are not the originator of it. So, as the defamation spreads like wildfire through the gathering, everyone who repeats it may also be committing defamation! So the message is, if you want to disparage someone, don’t publish your views to third persons and do not make your remarks so that they can be overheard; do it in private, one- on one with the object of your rancour. Better still, keep your views to yourself. For further details contact Matt Crouch on (02) 8281 7800 or email email@example.com.