Fascinated by defamation

Defamation law has hit the headlines in recent times with media outlets themselves becoming part of the news cycle.

Brisbane Barrister Gavin Rebetzke is fascinated by defamation law, which he said came to him and will ultimately come to other lawyers.

Gavin grew up in Townsville, studied at James Cook University and the University of Queensland before undertaking his articles at Roberts and Cain solicitors in 1993.

He was admitted in 1995 and continued to work in general practice where he later became a Partner in 2000.

In 2007, Gavin was called to the bar and has been practising in a variety of matters with a special interest in defamation.

In The Callover, he discusses the key principles of defamation, along with some of the recent cases in this space.

What made you want to study law?

“Goodness, I did want to help people. I had an interest in assisting others, particularly individuals. So that’s what I tell people. And I tell myself in reality, I really didn’t know much about the law when I started studying or at the end of the law degree. It wasn’t really until I started practising as an articled clerk that I really grew to love the practice of the law.”

And you were a solicitor for over a decade before you went to the bar. What made you decide to take that step?

“Of a lot of factors that coalesced at that particular time. And it’s something that I don’t regret, but the main difference and one of the reasons was that there’s something that I found unsatisfying or dissatisfying about having so many cases, so many clients at the one time, and only being able to have such a shallow dive into those cases.

“And I felt like I was just sort of treading water. There are other issues involved and, you know, financial pressures and running the practice employees and all these other non legal sort of matters. When I went to the bar, it was only me that I had to to worry about in terms of those practice issues. But it was a case of being able to do a much deeper dive into particular cases and and really concentrate on one brief at a time and be able to, to read the law.

“And it for me that was much more enjoyable. Everyone’s different and some people can thrive doing multiple things at once at a time and meeting lots of clients and people. I’m perhaps more of an introvert in some ways, and I really enjoyed being able to deal with one matter at a time and taking a much deeper dive into it.”

I understand you have a fairly broad practice at the bar, but where did your interest first get sparked in terms of defamation as well?

“It’s certainly it’s an area that’s fascinating. I mean, it’s in the press because journalists get sued and journalists are therefore fascinated by defamation cases. So the defamation cases are always well reported. The small firm that I was at actually had a bit of firm history where I acted for some defamation plaintiffs. And so, you know, at the morning tea room, there was usually discussion about previous cases before I’d come on the scene and I recall a discussion about particular client.

“And I can say this because I’ve since read it in the press that this particular client had named his boat the ABC with the winnings from a particular action. And so he could tell his friends he was going to go out fishing on the ABC, which I thought, well, that’s it’s all very interesting. But the principles at my practice, when I was an articled clerk certainly had a particular wariness of defamation.

“That said, it’s very expensive. Even though the practice had acted for plaintiffs and there was this wariness about defamation, it made me curious about what appeared to be the conundrum of all of that area for law.”

There seems to have been an influx of high-profile defamation cases in recent years, but before we delve into some of those, it might be worth starting with the basics. What is defamation?

“So defamation is the publication of material to someone else that from which or has the meaning from which an ordinary reasonable person would think less of the the plaintiff. So there’s an additional element now since 2021 and that is that the harm to reputation caused to the plaintiff has to be serious harm but that never used to be part of the the law of defamation.

“The law of defamation is common law. And it’s had the statutory law popped on on top of the common law, if we put it in that terms. Damage to reputation from defamatory matter being published was always assumed. But now you have to prove not only that you suffered damage to your reputation, that is that other people think less of you.

“You also have to go that extra step and prove that you’ve suffered serious harm.”

If someone posts something to Facebook or in a comment section of a website whose responsible for the publication?

“Undoubtedly the person that types away and puts it on to say Facebook or whatever the social media platform is undoubtedly that person is publishing the words … and will be held to account for what an ordinary and reasonable person would understand those words to mean. So, but the liability of the social media platform and perhaps is a open question.

“The courts have tried to reason by going back to an old case which involved a sort of a club noticeboard where the club sort of put on notice, put out at the clubhouse and essentially invited people to go and put notices up on that noticeboard. So there was a case that dealt with whether that was publication by the club.

“And I think that the principle has continued into the social media world, that it’s not publication by the the club or the owner of the the noticeboard or the Facebook or what have you, unless they are made aware. So they have knowledge of that particular defamatory words. Things get complicated with social media posts because there is this question of knowledge.”

Let’s confine ourself to Queensland for the moment.

“So the serious harm that the cases indicate that you have to look at a range of things, the extent of publication, the seriousness of the allegation. So there are some defamatory imputations that are regarded as being so serious that I think you’d probably be able to sail through the serious harm test with little problem.

“For example, when you look at the what the judges say in terms of what should be awarded as damages for people who’ve been the subject of an imputation, that they’re paedophiles, for example, that is regarded as so serious. So that I think you probably jump over that hurdle fairly quickly if that was the allegation. But it’s the seriousness of they’re the two main things is the seriousness and the extent of publication.

“But it also and there’s a recent case in Queensland of Justice Applegarth, who’s recently recently retired. But we say if if you’re interested in the law of defamation, there’s a lot of papers written by Justice Applegarth both before and after he was on the bench in this field in defamation. And there I recommend them very highly. The case that I’m referring to is Peros and Nationwide News and Hedley Thomas, Hedley Thomas had a podcast, some sort of true crime podcast, and Mr Peros had been charged with Shandee’s murder.

“He’d been acquitted by a jury. They had subsequently been a coroner’s inquest, and the coroner had found that Shandee had died essentially at the hands of Mr Peros. This was repeated and that allegation was repeated by Hedley Thomas in the podcast. And Mr Peros said, Well, you’ve published an imputation that I killed Shandee. And so he sued.

“So I’m truncating the facts. You know, as much as I can that the serious harm question raised its head. And initially there was a decision by Justice Applegarth, that required the plaintiff to properly particularise what he said was his prepublication reputation, particularly in respect of the question of whether he had been involved in the murder of Shandee.

“And then there was a hearing, a separate hearing of this harm, serious harm issue.

“And the judge goes through all the facts, goes through the the law, and ultimately finds that Peros didn’t have a reputation to harm or to harm in a serious way, because a coroner had already published findings that he was responsible for the death. And they had been reported widely so that if there’s any harm to the reputation, it was done at that time, and so that some time later when Hedley Thomas came to to his podcast, that they really couldn’t do any further harm or at least serious harm to his reputation.

“And so the proceedings dismissed at that point in time, were very different to what would have happened prior to the the amendments, because it would have had to go to a full trial and the defendant would have had to rely on the other defences available to it, truth, qualified privilege, and it would have had triviality available to it.

“And ultimately, if the defendant filed in respect of those defences, there would have been a question of what damages would Mr Peros be entitled to, and the question of how much evidence could be adduced of harm to his reputation prior to the publication.”

You mentioned a couple of the defences there. Maybe let’s just unpack a couple of them. Certainly the truth’s defence, what is the bar for proving it?

“Well, the truth will set you free. So as as a defendant in a defamation proceeding, it wasn’t always the case. So prior to 2005 in Queensland, we didn’t have the common law in Queensland. Prior to 2005, we had a statutory regime that was contained. It was actually contained in the Criminal Code, which I found fascinating when I was a young lawyer, but truthfully it actually wasn’t a defence.

“You couldn’t go around defaming someone if it wasn’t in the public interest to reveal something about their private life, for example, even if it was true. And I suppose, I mean, the truth is now a complete defence and what is required is that the defendant has to prove on the balance of probabilities the truth of the the each of the meanings that are conveyed or alleged to be conveyed by the defamatory matter.

“There’s a related defence where the defendant can actually allege that the published material contained something else, some other meaning perhaps more serious than what was alleged, the meanings alleged by the plaintiff. And so the defendant can, in that respect pick its own meaning and prove that is true. And if they succeed in proving that it’s true and it’s more serious than what the plaintiff has picked, then the defence will succeed.”

Now the public interest defence. What is that?

“Well, that’s a that’s a new one. So that’s part of the 2021 amendments. So we’re yet to see that play out. But I think it’s related. There used to be a public interest defence, if not in name, but essentially qualified privilege under the criminal Code regime prior to 2005. And Queensland actually provided quite an expansive protection, particularly for investigative journalists.

“So they if they only needed to show that it was in the public interest to publish what they were publishing and they didn’t necessarily have to show that their conduct in publishing it was reasonable, which is what the catch was when the statutory defence of qualified privilege contained in the Defamation Act from 2005 required this reasonableness component in respect of the conduct of the defendant.

“So in some respects, if you’re an investigative journalist, you’re better off in Queensland in the nineties – which partly explains, you know the stories that were able to be published that resulted in the Fitzgerald Inquiry in Queensland – than you were if you were an investigative journalist post 2005, and the media organisations obviously wanted to change that.

“And so in the 2021 amendments, there’s this new defence, sort of everything that is old is new again sort of thing of public interest. And so the defence has to prove that publication is both in the public interest and that they reasonably believed that publication was in the public interest. And there’s a list of things set out in the Act about what a court can have regard to in deciding those questions.

“But it seems unquestionably that that defence is going to be wider in scope than qualified privilege, which has this element of reasonableness and reasonableness of conduct and which is the reason why qualified privilege lost as a defence in the Lehrmann and Network Ten case.”

If you think someone has said something defamatory against you or your client, what’s the first thing you should do other than perhaps screenshot it and gather evidence?

“Well, absolutely. That’s the first thing you should be doing, is gathering the evidence. And and the importance of doing that can’t be understated. You have to get the evidence. You have to get some evidence of the extent of publication. Much more complicated in social media world where we we actually don’t know – I think it’s bizarre – but we actually don’t know for sure what other people’s social media experiences are, because everyone’s feeds are tailored to them by the algorithms of the platform.

“So it’s difficult to know, but yes, get the evidence, but then you go off and see a solicitor and you might be the solicitor who’s receiving this complaint. Back in the day, the first thing that you would do is send as a solicitor, you’d send a cease and desist letter. The modern equivalent is the concerns notice … the requirements for concerns notices is set out in the Act. Since 2021, this is one of the changes in the first tranche of changes, it now requires a concerns notice to have been issued before you can issue proceedings for defamation. So it’s a prerequisite. There used to be some advantages to sending out a concerns notice, but it wasn’t compulsory.

“Now it is. So that would be the first thing that you do and you have to identify what you say are the meanings, the imputations that are conveyed by the words which, which might be what the words say, they might not be, they might be implied. So you actually have to have some regard to the old case law about pleading defamatory imputations right at that very early stage when you’re sending out your concerns notice.”

And then if you’re on the receiving end of a concerns notice, how do you go about responding to it?

“Well, you have to take it seriously. Obviously. Yes, because a concerns notice is essentially the modern equivalent of being served with court documents because, you know, that’s the next step. But there is there is a defence available to defendants of making a reasonable offer to make amends. But there’s a limited time after you receive a notice within which to make that offer. And so if you don’t make a reasonable offer within that timeframe, you’re potentially losing what is a substantive defence or could be a substantive defence if you’re faced with an unreasonable plaintiff, for example, who is, you know, emotionally affected by what’s been published and wants to press on.

“And so sometimes these things are published accidentally. And, you know, there was no intention of naming a particular person. Sometimes the defendants are intended to name someone else who’s actually guilty of all of these things. These things happen. And so ultimately, if you do any defamation law, you see these apologies pop up everywhere, but everyone will have seen them at some stage and a reasonable offer to make amends. I think it’s stated in the Act it has to also contain an offer to pay the reasonable costs incurred by the defamed.”

If there are listeners out there who are interested in getting involved in the area of defamation, what advice would you give to them?

“Well, I think defamation’s sort of something that comes to you and it will come to you. It doesn’t matter what area you’re practising in, it’s going to come to you because you’re going to have clients that complain about what’s said about them. And so I think it’s useful for all practitioners to have a working knowledge of defamation, at least, you know where to to go.

“And essentially these days it’s fairly easy. The first stop is you go to the Defamation Act, what is the uniform law, or at least used to be the uniform law, And is the almost uniform law. But I mean, if you’re really, really interested and you need to seek out employment or work from media organisations, of course, the whole industry of media industry is under enormous change and one struggles to think about, you know, whether there’s going to be quality investigative journalists even in the, you know, the not-too-distant future, the way things are sort of going.

“So but that’s the traditional approach. If you’re really, really interested in defamation, is that you attach yourself to two media clients. But for me, in my practice. It really first came to me in the practice of, well, particularly in workplace, industrial sort of matters. But it will come to you. It will come to you whether you’re practising in criminal law or family law, there will be occasions where clients will want advice about defamation and it’s not too hard to turn, you know, specialise in that if you keep up to date and you gained a reputation in that area.”

What is one piece of advice you would give your younger self as they commence their legal career?

“The legal profession has undergone, with society, quite a bit of change since when I first started. What I probably want to say is you should remind yourself that it’s not your case. It’s your client’s case. It’s important to care and it’s important to be careful.

“But ultimately, if you want to remain healthy and have a healthy perspective on life and your profession, one thing that you should remind yourself of from time to time is this isn’t my case or my problem. It’s my client’s problem. And so that you maintain some level of professional distance from that. It’s healthy. And I think the clients benefit from professionals who are maintain a healthy detachment from that.

“And when I see younger practitioners very enthusiastic and you know, perhaps get overinvested in cases and I mean, that’s okay; everyone does that. But it’s the nature of the beast that there’s always going to be, if a case goes to court, there’s always going to be a winner and a loser and you celebrate the highs.

“It’s important to try and level things out. So the advice I’d give myself when I first start out is to remind yourself, to remind myself this isn’t actually my problem, but my client needs my help to solve it. And I think that maintaining that perspective is healthy and certainly something that at some stage I probably did lose or or needed someone to come and tell me.”

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