In an era of citizen journalism, it can be difficult to know what you can publish to whom. This blog post will explain the legality of defamation and why you need to know the details of Rebel Wilson’s case against Bauer Media.
“Far too often I feel the tabloid magazines and the journalists who work for them don’t abide by professional ethics. Far too often I feel their conduct can only be described as disgusting and disgraceful.”
Wilson told reporters outside court during her fight against Bauer Media.
Photo: Media Week
What was the fuss about?
In 2015, Bauer Media published eight articles in a three day period claiming actress Rebel Wilson had lied about multiple aspects of her upbringing. The first article Bauer Media printed, headlined ‘Just Who Is the REAL Rebel’ in magazine Woman’s Day which claimed that Wilson had lied about her name, childhood, age and personal life. Bauer Media then published follow-up stories on its website, including Woman’s Day, Woman’s Weekly, New Weekly and OK Magazine. Wilson began a civil suit against Bauer Media for defamation in 2016 due to the implications the articles caused, including loss of work, income and damages to reputation.
So what is defamation?
In the text Journalists Guide to Media Law by Mark Pearson and Mark Polden defines DEFAMATION as “the wrong of injuring another’s reputation without good reason or justification.”
What protects people from defamation?
Defamation laws used to vary between states in Australia but are now unified and protected under the Defamation Act 2005. The unified law made it easier for publishers to interpret the law across most of the nation. In the Rebel Wilson case, Wilson claimed Bauer Media damaged her reputation by publishing defamatory material.
Defamatory material includes:
Defamatory material is explained under the Defamation Act as,
- an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and
- a program, report, advertisement or other thing communicated by means of television, radio, the internet or any other form of electronic communication; and
- a letter, note or other writing; and
- a picture, gesture or oral utterance; and
- any other thing by means of which something may be communicated to a person
It also explains that electronic communication such as a text, image, data, sound or a combination of these can also be defamatory.
In Wilson’s case the defamatory material was a magazine article and several internet publications.
Imputations
The Journalists Guide to Media Law, by Pearson and Polden explains “an imputation is the defamatory meaning conveyed by the published material.” This means the plaintiff (the person who has been defamed) must prove that the publication conveyed a meaning (imputation) that made others think less of them. It is not enough to say it portrayed them in a negatively or that it offended them, this isn’t defamation. For example, according to the guardian in the Wilson case, the material by Bauer Media
“painted her as a fake and a liar”
which caused the actress to miss out on acting roles and income.
Photo: ABC (AAP: David Crosling)
What Bauer Media said about Rebel Wilson
The imputations the jury found to arise from the original article and were defamatory: “That Ms Wilson is a serial liar who has invented fantastic stories in order to make it in Hollywood…”
What if I didn’t mean to defame someone?
Unfortunately, it doesn’t matter. The jury is required to question what an ‘ordinary reasonable person in the community’ could understand the material as. Pearson and Polden’s text explains an imputation can be conveyed by the following:
- a natural and ordinary meaning of the words/material
- a ‘false innuendo’- a secondary meaning through ‘reading between the lines’
- a ‘true innuendo’- relying on other facts known to the receiver of the publication (background knowledge)
“They have no idea how actually brutally hard it is … yes I am an actress and I am in the public eye, but I’m a human being.” Wilson told Channel Seven’s Sunday Night program.
In short, imputations that come from the material expose a victim to hatred, concept or ridicule and what is being said or published will lower that persons social, professional or personal standing in society. In Australia, there is no legal distinction between ‘libel’ (published) and ‘slander’ (spoken) material- both can be defamatory.
Identifying the defamed person
The defamed person must prove that the publication referred to them or could be interpreted as them.
To sue, the Defamation Act states the plaintiff has to be identifiable:
- They have to be named, or
- If no one has been named, there must be a clear description, or
- Small group of people must be described or
- A fictious person has been named that bears the clear resemblance of the defamed person, or
- The wrong person has been named or depicted
In Rebel Wilson’s case, she was directly named, therefore it was easy to identify the material was directed at the actress.
Third party
“The plaintiff has to show that the material was published to at least one other person other than themselves.” Pearson and Polden’s text explains. This means you can write a message directly to someone saying whatever you want, and it isn’t defamatory but if you send the text to one other person, then it is defamatory.
Bauer Media published the articles to their magazine Woman’s Day which has 859,857 readers. As well as to the website, which states it has 1,603,417 digital members. These statistics are for the original publication alone and doesn’t include the other magazines and sites they published to in the following days.
“I just think it’s really important that the truth comes out.”
Wilson explained to reporters outside the court room.
Limitation period
Plaintiffs have 12 months from the date of publication to launch an action of defamation but according to Pearson and Polden’s text “for web publishers, the clock restarts for the one-year limitation period every time the material is downloaded and read.”
Wilson asked for an apology after the articles were released but Bauer Media thought their defence was strong and told Wilson if she sued they would prove in court she was a dishonest person.
Who can sue or be sued for defamation?
- Any individual
- Companies that employ less than 10 people and are not related to another corporation
- Local government bodies and public authorities CANNOT sue- but their officers can if they can prove their reputation was damaged as individuals
- Deceased CANNOT be defamed, except in Tasmania
Is there a defence for defamation?
Yes, and there are a few! The following are explained by Pearson and Polden’s text:
Truth
A complete defence where publishing the truth about someone doesn’t lower their reputation and the meaning taken from the publication is substantially true.
Contextual truth
The material carried other meaning that was substantially true and that their publication will not further harm the person’s reputation as it is already diminished.
Public Interest and Fair Reporting
The public ‘right’ of the audience to be informed about what may affect them but must be a ‘correct record’.
Absolute privilege
Applies to parliament proceedings where defamatory statements can be made in legal proceedings, reports published, proceedings of courts and information published by the crown.
Qualified privilege
Allows defamatory material where there is a legal or moral obligation to do so, which applies to business, educational and professional communications.
Malice and Intent
Defeats a defence of qualified privilege and honest opinion where “an ulterior purpose in publishing defamatory material” applies Pearson and Polden’s text explains.
Triviality
The circumstances of the publication were unlikely to cause harm to the person’s reputation.
Bauer Media’s defences were justification, truth and triviality which were dismissed, and Wilson won the case.
“I had to stand up to a bully, a huge media organisation, Bauer Media Group, who maliciously took me down in 2015 with a series of grubby and completely false articles.”
Wilson said in the news conference outside court
Picture: Scott Barbour/Getty Images
Remedies
Defamation remedies are usually monetary amounts that are awarded as compensation for the injury to reputation.
Wilson was originally awarded $4.7 million all up which is the largest defamation payout in Australian history. In awarding the damages, Justice John Dixon said the defamation extent was “unprecedented in this country” because of the articles’ global reach. The Supreme Court of Victoria states the damages awards consists of:
(a) $650,000 in general damages, including aggravated damages; and
(b) $3,917,472 in special damages for Ms Wilson’s opportunity for new screen roles lost by reason of the defendants’ publications.
Appeal
Bauer Media appealed the amount of money that was awarded to Ms Wilson which reduced the payout to $600,000 and made Wilson pay 80% of the appeal costs.
The Court of Appeal’s reasoning was that “there was no basis in the evidence for making any award of damages for economic loss.”
The appeal and reduction of damages doesn’t mean Wilson lost the case, just that the original judge awarded too much.
How is this relevant to me and the media?
Whether you are a journalist, freelance writer, blogger or social media user, you need to be aware of the above implications that defamation can bring. As a journalist or media professional, it is essential to identify whether your work could be defamatory. Articles CAN reach celebrities or people who you think may not see the publication. It doesn’t matter whether you have 100 followers or 100,000, a defamation case could damage future prospects of your employment and your own reputation as a media professional as well as serious financial penalties.
The Wrap-Up
The Wilson vs Bauer Media case should be a warning to all media professionals, especially those who believe they will escape a defamation suit.
The articles about Wilson were published without any thought of defamation being brought against them. For this reason, as a media professional, it is detrimental to your career and your employer that you understand and avoid defamation in its entirety and ensure you can support your writing.
Therefore, when publishing, consider the information above and whether your material should be published. If Rebel Wilson can bring Bauer Media down, there is little chance for you. If you have any doubt, seek legal advice.
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