ACT: Q&A Defamation threats for executive committee members

This Q&A article is about defamation, particularly in relation to executive committee members in the ACT.

Table of Contents:

• QUESTION: What protection do strata insurance policies offer against defamation claims?


• QUESTION: The former Chair of our executive committee has accused me of defamation. I am a member of the EC and wonder whether there is any protection for EC members from defamation threats.

Question: What protection do strata insurance policies offer against defamation claims?

Answer: If you have had a claim for defamation made against you, check with your insurance broker the cover afforded by the policy.

If you have had a claim for defamation made against you, I highly recommend checking with your insurance broker the cover afforded by the policy. The broker should not only check the Office Bearers Liability section of your policy but also the Public Liability section as well because defamation can sometimes be considered a personal injury event.

I wrote to a number of insurers in April 2020 to clarify their position on defamation cover and as I understand Axis, Chubb, Longitude, QUS & SUU do not exclude defamation cover (at the time of providing that advice). CHU, Flex & SCI do have exclusions. CHU did release a new policy wording in January 2022 and one of the changes in the policy wording clarified that office bearers were not covered for defamation – so if your policy incepted before this date you may want to consider your options.

If cover is important, you should consider switching to an insurer that does provide the appropriate cover or alternatively, ask your broker to consider other options such as a management liability policy (without defamation exclusions) – premiums start at $1,000.

Another consideration if you are making publications that run the risk of resulting in a defamation claim – the owners corporation as an entity has better protections as opposed to an individual office bearer. If communications were made on behalf of the owners corporation instead of by the committee or individual committee members it may mean a legal notice is served on the owners corporation instead of an individual office bearer/s and might provide further consideration for a claim under your policy.

Depending on the circumstances and prospects of success in the claim, it is our experience that the absolute majority of defamation matters do not make it past the concerns notice. The claimant has to balance up cost of running a claim and the fact that defamation claims are often so fraught.

If you would like to discuss your matter further please feel free to contact me.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #588.

Question: The former Chair of our executive committee has accused me of defamation. I am a member of the EC and wonder whether there is any protection for EC members from defamation threats.

The former Chair of our executive committee and her husband have had a solicitor write to me claiming that I defamed them in a recent response I made to a letter received from the managing agent. I was critical of them, but truthful.

Do I have any protection from defamation action in this situation? I am now a member of the EC and wonder whether there is any protection for EC members from defamation threats.

Answer: Most strata insurance policies exclude defamation from coverage for executive committee members.

Defamation

14.26 What is Defamation?

Very simply, defamation is a communication from one person to at least one other that lowers or harms the reputation of an identifiable third person, where the communicator (the publisher) has no legal defence. The protection of one’s reputation is the purpose of defamation law.⁷⁹⁴ This goes beyond casting doubt on one’s character (i.e. his or her reputation for honour, honesty or integrity) and extends to a reputation in trade, business, profession or office. Any living person may sue for defamation, however, this right is restricted to corporations which are not-for-profit or employ fewer than ten full-time employees.⁷⁹⁵

One might legitimately ask the question as to why a book on strata law would have a section addressing defamation. The unfortunate reality is that whenever humans interact in pressurised or charged circumstances, there can occasionally arise a question of whether what one person has said is defamatory or not. The question commonly arises in the context of heated debates during meetings or the circulation of minutes of meetings.

It is essential that the defamation be communicated to someone other than the person defamed and the question of intention is irrelevant. Liability depends upon whether the words are defamatory or not.

14.27 Uniform Defamation Laws.

New defamation laws came into force in the Australian Capital Territory from 23 February 2006. This resulted in the insertion of chapter 9 into the Civil Law (Wrongs) Act 2002 (ACT) (the CLW Act).

These laws are substantially the same nationwide but there are some differences between jurisdictions. For example, the Australian Capital Territory and South Australia do not have jury trials for defamation, whereas the other states and territory do. Further, in the Australian Capital Territory that there is no right of action for a deceased person.

14.28 Offers to make amends and apologies.

Division 9.3 of the CLW Act sets out a number of provisions to encourage the resolution of defamation claims without recourse to litigation.

The publisher may make an offer to make amends to the aggrieved person. An offer to make amends may include any kind of offer to redress the harm sustained by the aggrieved person including but not limited to an offer to publish an apology or an offer to pay compensation for any economic or non-economic loss.⁷⁹⁶

If an offer to make amends is not accepted, it will be available as a defence provided that the offer was made as soon as practicable after becoming aware that the matter is or may be defamatory and the offer was, in all the circumstances, reasonable.⁷⁹⁷ In determining whether an offer to make amends is reasonable, the factors set out in section 130(2) of the CLW Act must be taken into account.⁷⁹⁸

In addition, an aggrieved person can serve upon the publisher of defamatory material a ‘concerns notice’. A concerns notice informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question.⁷⁹⁹

14.29 Defences.

Division 9.4 of the CLW Act states that the defences under that Act do not limit the other defences which may be available under the common law.⁸⁰⁰

The defences to defamation are:

1. triviality – if the defendant can prove that the person defamed was unlikely to suffer any harm, the defendant has a complete defence;⁸⁰¹


2. providing that the statement made was actually substantially true;⁸⁰²


3. where privilege attaches not to content but to occasion or form. For example, words spoken in parliament or judicial proceedings are privileged (and therefore cannot be regarded as defamatory);


4. fair comment on matters of public interest.⁸⁰³ This is regarded as of such importance to a democracy as to outweigh the competing claim to unqualified protection of individual reputation;


5. honest opinion where the matter was an expression of opinion of the defendant rather than a statement of fact and the opinion related to a matter of public interest and the opinion is based on proper material;⁸⁰⁴ and


6. innocent dissemination where the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor and the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory and the defendant’s lack of knowledge was not due to any negligence on the part if the defendant.⁸⁰⁵

In addition, there is a cap on damages for non-economic loss of $250 000.⁸⁰⁶

14.30 Remedies.

Division 9.4.3 of the CLW Act details the remedies available. When a court is determining the amount of damages to be awarded, there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.⁸⁰⁷

For example, a plaintiff cannot be awarded exemplary or punitive damages for defamation.⁸⁰⁸

Section 139I set out the factors that can be taken into account to mitigate the damages awarded by a court. For example, making an apology for the publication of defamatory material.

Section 21B of the Limitations Act 1985 (ACT) provides that generally court proceedings can only be commenced within one year from publication of the defamatory material. The Court does however, retain the discretion to extend this limitation period in certain circumstances.

Finally, as a general rule, most strata insurance policies exclude defamation from coverage for executive committee members.

Footnotes:

1. 794 Defamation Law Information Sheet, Arts Law Centre of Australia, 2016.


2. 795 Defamation Law Information Sheet, Arts Law Center of Australia, 2016.


3. 795 Civil Law (Wrongs) Act 2002 (ACT) s 127(1)(g).


4. 797 Ibids s 130(1).


5. 798 Ibids s 130(2).


6. 799 Ibids s 126.


7. 800 Ibids s 134.


8. 801 Ibids s 139D.


9. 802 Ibids s 135.


10. 803 Ibids s 139B.


11. 804 Ibids s 139B.


12. 805 Ibids s 139C.


13. 806 Ibids s 139F.


14. 807 Ibids s 139E.


15. 808 Ibids s 139H.

Christopher Kerin Kerin Benson Lawyers P: 02 8706 7060 E: enquiries@kerinbensonlawyers.com.au

This response is an extract out of Christopher Kerin’s book, Guide to ACT Strata Law.

This post appears in Strata News #585.

After more detailed information dealing with Strata Law in the ACT? Chris Kerin’s Guide to ACT Strata Law is now available.

Have a question about defamation or something to add to the article? Leave a comment below.

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This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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