I just discovered this thread, and the various comments of others about defamation laws. I provided an advice only today to a company in relation to a defamation issue, and have been involved in defamation cases in the past in my legal practice.
At the risk of contradicting some other comments appearing before me:
1. A defamatory statement is a written or oral statement which contains a defamatory imputation.
2. A defamatory statement against an individual will normally relate to their character; a defamatory statement against a company will normally relate to the ethical standards, trustworthiness, or competence of a company.
3. For someone to bring legal proceedings for defamation, they would firstly have to write a letter to the offender seeking a retraction. In this letter, they would need to:
(a) identify the statement which is allegedly defamatory
(b) identify the audience (noting that is must be a third party - ie, you cannot defame someone to their face, unless someone else is watching!)
(c) identify the defamatory imputation underlying the statement.
4. If the retraction is forthcoming, the offended party will not normally be able to bring proceedings because (at least under section 14 of the Defamation Act NSW) a claim will fail where the comments are unlikely to be believed, and a retraction would normally undermine the public's acceptance of the impugned statement.
5. Unlike most other torts, you do not need to demonstrate actual damage to be entitled to compensation. The court will award damages for a defamatory statement on its face. Evidence of economic loss may be another head of damages also awarded, if loss or loss of a chance is demonstrated in the evidence before the court.
6. It is not strictly speaking correct to say that a true statement is not defamatory. In court proceedings, once it has been shown that a defamatory statement has been made, it is then a defence to demonstrate that the statement is true.
7. As defamation requires "publication" (whether by delivering an oral statement, email or document), the applicable law will almost certainly be the place where the third party hears or reads the statement. Thus, if I send a letter from Australia to the Jakarta Herald criticising an Indonesian judge by name, and this is held to be defamatory, it would actionable by the Indonesian judge in Indonesia under Indonesian law as the audience of the newspaper is the Indonesian public (Now, I wonder how fair that trial would be??!!).
8. When I say something to the effect of, "I hate X. I think his policies will bring Australia into ruin", I am making a statement of my own beliefs. I am not asserting some general truth about X, and so I am not defaming X. Compare this with the statement, "X is having an improper relationship with the Speaker of the House". This second statement is asserting a truth about X that is true for all people. It is clearly defamatory. If you have a look at the Letters to the Editor section of a newspaper, you will see that most letters fall into the first category. These are entirely safe and non-contentious. Compare this with Latham's diaries. If he is put to proof about some of the matters he asserts as fact in his book about the character of others around him, in my view he may be in some difficulty (notice I personalised that statement).
Turning to the question of posts on this forum, I note the following:
1. Each person is clearly posting their own views. Mike and the other moderators have never represented that they agree with the views expressed by others, and so I cannot see how a claim against Mike et al could possible succeed. Any person properly advised would realise that such a claim must fail. (Mike, for abundant caution, you may wish to spell out somewhere on the site that the comments posted on the site should be read as being the opinions of individual posters, and should not be inferred in any way to be the views of the moderators).
2. So long as when each person posts about a company or individual, they make it clear that they are merely expressing their personal opinion, no problems.
3. If someone is offended, there will be an opportunity to retract before litigation commences, and a retraction will almost always be the better part of valour (to mix metaphors slightly).
In short (at the end of a long post), chill out everyone!
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