Defamation occurs when someone publishes a statement that does damage or could reasonably put at risk of damaging another’s reputation. In Queensland, the law relating to defamation, including as it relates to bodies corporate, is governed by the Defamation Act 2005 (Qld).
Defamation Act and recent reforms
In 2021, the laws surrounding defamation proceedings were reformed in many jurisdictions, including Queensland. These reforms made changes to the process of pursuing defamation claims including introducing a ‘serious harm’ threshold, making it mandatory for an aggrieved person to send a concerns notice, clarifying damages for non-economic losses including introducing a maximum cap that can be awarded, and providing additional and clarified defences to defamation claims.
There have also been amendments to a different piece of legislation that made it clear that the 1-year limitation period for bringing defamation proceedings commences on the date the defamatory material is published. Where there are multiple publishing’s, the limitation period commences on the date of the first publication.
Serious harm threshold
Previously, a plaintiff in a defamation proceeding was not required to prove that they had suffered a loss. The loss was assumed once they were able to establish defamation. Under the reformed Defamation Act, the plaintiff will now bear the onus of proving that they have suffered serious harm as a result of the publication of defamatory material.
There is no definition of what ‘serious harm’ is in the Defamation Act, however, some recent decisions have weighed in on what will be required to meet this threshold.
The first matter to consider is the serious harm element modelled the interpretation of the provision from the United Kingdom’s equivalent, endorsing the reasoning provided by the United Kingdom Supreme Court. This case held that serious harm is to be determined by reference to the actual facts about its impact, not simply the meaning of the words and that the serious harm threshold abolishes the presumption that defamatory publications cause damage to a person’s reputation. In other words, the plaintiff must now prove that the defamatory publication caused harm and that harm was or will be serious. This reasoning from the United Kingdom will likely be an influential source of direction for future Australian defamation cases.
In one recent NSW matter, the Court said that to satisfy the serious harm element, it “requires fact-rich proof of harm which is actually or likely to be serious, rather than inferences of serious harm and a tendency to cause harm being drawn from the number of persons who were in the audience or other generalised statements. There must be causation between the publication and the serious harm.”
Mandatory concerns notice
An aggrieved person must now issue a concerns notice as a prerequisite to commencing defamation proceedings. The notice must outline the aggrieved person’s claim and particulars of that claim and will provide the other party with an opportunity to consider their position and make an offer to amends before the aggrieved party can commence proceedings.
The concerns notice must meet certain requirements under the Defamation Act to be valid. A recent matter before the Court noted that the concerns notice must properly particularise the serious harm alleged, otherwise the concerns notice is at risk of being deemed defective. As this is the case, it is recommended that you seek legal assistance in preparing a concerns notice.
If the recipient makes an offer to make amends, the offer must also meet certain requirements, including that it must make an offer to publish a reasonable correction or clarification, an offer to take reasonable steps to advise those in receipt of the defamatory publication of the defamatory nature of the material and include an offer to pay the expenses reasonably incurred by the aggrieved person.
The reforms place a limit on the amount that can be awarded for claims of non-economic loss. That limit is currently $443,000.
However, as it relates to bodies corporate, the Defamation Act is clear that to satisfy the serious harm element (as discussed above), corporations (including bodies corporate) must prove that the harm is likely to cause serious financial loss. As such, a body corporate could not claim damages for non-economic loss as it would fail to satisfy the serious harm threshold.
Non-economic losses that an owner may suffer can include hurt, injury and harm caused to the feeling and personal or professional reputation of the owner. This is often coupled with financial loss, for example, if defamatory material was published regarding an owner in the scheme which both harmed their personal reputation and also caused loss to the owner’s income in deterring potential lessees. However, this is still subject to the serious harm threshold.
Defamation in the context of body corporate
Issues surrounding defamation arise all too frequently in the context of bodies corporate, as tensions can escalate into disputes, often leading to an email being circulated to other owners that defames another member of the body corporate. Circumstances can also arise where the body corporate itself is implicated in a defamation action, whereby a general meeting contains potentially defamatory material or a committee member is implicated in defamatory behaviour.
Protections under the Act
The Body Corporate and Community Management Act 1997 (Qld) provides general protection for committee members from civil liability for an act done or an omission made in good faith without negligence in performing the member’s role. Many believe that this affords a licence for committee members to speak their minds and possibly make defamatory statements without consequence. However, this provision specifically excludes publishing defamatory material from the protection afforded under this provision.
The BCCM Act also provides protection for the body corporate and committee from liability of defamation. This protection only applies in specific circumstances where the material ‘published’ (i.e. circulated to owners) is the material required for a general meeting, and that material contains defamatory matter. This required material is defined to include a motion and explanatory note submitted by an owner.
This protection is in place as the body corporate must include motions presented by owners on the agenda of a general meeting, regardless of their content, including where it includes defamatory material. The justification lies in that a body corporate or the committee should not be held liable for the actions of an owner where they are legally obliged to publish defamatory material for the purposes of circulating a general meeting agenda.
However, there are some limitations to the protection, being that it does not apply to material from a committee meeting, general meeting motions submitted by the committee or other material that may be published by the committee.
Committee members should be aware that the BCCM Act actually provides very limited protection for members, other than where the material in question is a motion proposed by an owner and must be circulated by the body corporate for the purposes of a general meeting.
If defamatory material is published outside of the circumstances which fall under the protection, the committee may be able to rely on the defences under the Defamation Act.
As far as we are aware, there has not yet been a consideration of a defamation dispute involving a body corporate since the reforms in 2021. However, we do note below some interesting cases involving bodies corporate and defamation.
In Walden v Danieletto, a lot owner owed overdue levies to the body corporate. The lot owner was declared unfinancial at the general meeting by the body corporate manager despite making payment the night before due to a system error.
The lot owner made the assertion that the declaration implied that he was a delinquent payer, could not afford to pay his levies, had financial difficulties and was insolvent. As a result, the lot owner commenced proceedings for damages in the amount of $100,000. The action failed, with the Judge finding that the lot owner had not been defamed, and if he had, the matter was trivial and a defence of qualified privilege applied (being that the body corporate manager’s acts were committed in the performance of a legal duty, were properly exercised and free from malice).
In Murray v Raynor, the NSW Court of Appeal overturned the original decision that Ms Murray had defamed Mr Raynor (the current chairperson) in an email sent to some owners in response to Mr Raynor’s emails regarding her mailbox being left unlocked. Mr Raynor was originally awarded $120,000 in damages. The Court of Appeal found that the defence of qualified privilege applied, and relevantly said:
“…the appellant had an interest in communications between the strata committee and residents at Watermark about management of the building including the security of mailboxes… the occasion of qualified privilege was the communication to residents of Watermark on the topic of management of the building including the security of mailboxes.”
The Court of Appeal also found that the award of $120,000 in damages was excessive in the circumstances, considering the material was published only to 16 people and did little if any, reputational damage.
These decisions indicate that it is a difficult bar to reach to prove that you have been defamed and suffered damage in the context of strata. These decisions do not deal with the serious harm threshold, however, in our view that would raise the bar even further.
If you believe that you may have been affected by defamation, either as the victim or perpetrator or have further questions surrounding your liability, please contact our office to seek further advice which is specific to your circumstances. We can help you understand the most common defences to defamation, and whether one is applicable to your circumstances.